Hy'S Of Chicago, Ltd.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1079 (N.L.R.B. 1985)

HY'S OF CHICAGO, LTD.
Hy's of Chicago , Ltd. and Hotel Employees and
Restaurant Employees , Local 1, AFL-CIO, and
the Chicago Joint Executive Board of the Hotel
and Restaurant Employees and Bartenders
International Union, AFL-CIO. Cases 13-CA-
23168-1, 13-CA-23168-3, and 13-RC-16211
30 September 1985
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 7 November 1984 Administrative Law Judge
James J. O'Meara Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the Charging Party filed a brief in sup-
port of the judge's decision. .
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three,
member panel. -
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings , i findings, and
conclusions2 and to adopt the recommended
Order.
ORDER -
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Hy's of Chi-
cago, Ltd., Chicago, Illinois, its officers, agents,
successors , - and assigns; shall take the action set
forth in the Order.
DIRECTION
It is directed that the Regional Director; for
Region 13 shall, within 10 days from the date of
this decision, open and count the ballots of Elias
Papaioannou and Gus Arvanitis in Case 13-RC-
16211 and prepare and serve upon the parties a re-
i The Respondent has excepted to some of the judge's credibility find-
ings 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 We find without merit the Respondent 's contention that the
judge's consistent credibility resolutions against its witnesses cast serious
doubt on the objectivity of the judge's finding
Chairman Dotson notes that no exceptions were filed with respect to
the judge's unfair labor practice findings
2 In adopting the judge 's recommendation to overrule the Respond-
ent's Objection 4, we agree with the judge that the testimony of the Re-
spondent 's witness Manuel Sarabia cannot be credited Therefore, the Re-
spondent has failed to present sufficient credible evidence to meet its
burden of proof .
At the election the Union challenged the ballot of Renee Papa and sub-
sequently filed its Objection 6 in which it again alleged that the judge
recommended that Objection 6 be sustained However, the judge's rec-
ommendation properly should have been to sustain the challenge to
Papa's ballot. -
1079
vised tally of ballots. If the revised tally reveals
that the Petitioner has received a majority of the
valid ballots cast, the Regional Director shall issue
a certification of representative. However, if the re-
vised tally shows that the Petitioner has not re-
ceived a majority of the valid ballots cast, the Re-
gional Director shall set aside the election results
and direct a second election.
Felicitas Berlang, Esq., for the General Counsel.
Robert B. Hoffman, Esq., and Michael J. Randallo, Esq.,
for the Respondent.
John J. Reynolds, Esq., Mark A. Spadoro, Esq., and
Edward Hanley, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES J. - O'MEARA JR., Administrative Law Judge.
These consolidated cases were heard at Chicago, Illinois,
on October 24, 25, and 26, 1983.1 The original charges in
Cases 13-CA-23168-1 and 13-CA-23168-3 were filed on
April 20, by* the Hotel Employees and Restaurant Em-
ployees, Local 1, AFL-CIO and the Chicago Joint Ex-
ecutive Board of the Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO (the
Union). A consolidated complaint based on those charges
was issued on June 3..In that complaint it is alleged that
on April 19, Respondent threatened its employees with
discharge or other reprisals; interrogated its employees
regarding union membership, activities, and sympathies;
discharged two of its employees, Elias Papaioannou and
Gus Arvanitis because of their activities in support of the
Union, all in violation of the Act. Respondent denies that
it has violated the Act. .
Pursuant to a petition filed on April 19 and a Stipula-
tion for Certification Upon Consent Election approved
on May 10, an election by a secret ballot was held on
May 20. At that election, in which 49 voters were eligi-
ble, 23 voted for the Petitioner and 23 voted against the
Petitioner.- Three of the total ballots were challenged,
two of which arise because of the discharges described in
the complaint. The challenged ballots are sufficient in
number to affect the results of the election. Timely ob-
jections to conduct affecting the results of the election
were filed by the Employer and the Union. The Region-
al Director found that the discharges of Papaioannou and
Arvanitis are alleged as discriminatory and the subject
matter of unfair labor practice charges involve the same
parties. Accordingly, on June 17, an order was entered
consolidating the representation case with the pending
consolidated unfair labor practice cases.
Based on the entire record, including my observation
of the demeanor of the witnesses, and in consideration of
the briefs filed by the parties and the arguments made by
counsel, I make the following
i All dates are in 1983 , unless otherwise indicated.
276 NLRB No. 113
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
- I. JURISDICTION
Respondent is an Illinois corporation with an office
and place of business located in Chicago, Illinois, and has
been engaged in the operation of a public restaurant sell-
ing food and beverages. During the calendar year ending
December 31, 1982, Respondent, in the course and con-
duct of its business operations, derived gross revenues in
excess of $500,000 and Respondent during the period of
January 1, 1982, up to and including December 31, 1982,
purchased and received goods, materials, and/or services
valued in excess of $5000 directly from points outside the
State of Illinois.
Based on the above facts, derived- from' the pleadings
of the parties and a stipulation of the parties, I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
- II. THE UNION
On the allegations of the complaint and the answer
thereto I find that' the Union is now, and has been at all
times material herein, a labor' organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent.and Its Labor History
Respondent operates a restaurant located in the city of
Chicago -which, according' to its general manager, Al-
fredo Papa, "caters to the elite." At all times material
herein Papa was' the general manager of Respondent.
Charles Christ has been the assistant general manager
and maitre-d'. Eduardo Echeverria has been the chef and
kitchen supervisor, Patricia Georgacas has been Re-
spondent's daytime manager, hostess, and supervisor.
Gus Arvanitis and Elias Papaioannou were employed by
Respondent as, waiters. in which their duties comprised
the servicing of customers and performance of preas-
signed preparatory work, filling assigned stations with all'
the necessary condiments and supplies necessary for the
shift comprising the lunch and/or dinner periods. The
split shift required waiters to,work from approximately
10 a.m. until 2:30 p.m. at which time their preparatory
work for the dinner shift is performed. They return at
approximately 6 p.m. and work until closing. Waiters
who work only the dinner shift begin at approximately 4
p.m., perform their preparatory work, and then work
until closing. The waiters were supervised on a daily
basis by the maitre d' "at night or the hostess during the
lunch shift.
An effort on the part of employees to organize Re-
spondent's employees occurred in late summer or early
fall of 1981. An organizing effort had commenced and
had advanced to the point of soliciting the employees to
sign union cards. During this period Papaioannou and
Arvanitis had conversations with Papa about the Union.
Papa, at that time, stated that the unions had "a bunch of
crooks" and cited the, then current, air traffic control-
lers' dilemma. The employees expressed the desire for a
union because of working conditions at Respondent's fa-
cility at that time. In addition to these "conversations at
Respondent's facility, Papa met with several waiter em-
ployees in a off premises restaurant where the employees
explained that they wanted a'-union because of their dis-
pleasure with the working conditions at Respondent's fa-
cility and their belief that the union would help them.
Papa responded by assuring the employees that, if they
dropped the union organizing effort, he would improve
the working conditions at the restaurant. This assurance
on the part of Papa caused the employees to abandon
their organizational efforts and no further efforts were
made until April 1983.2
B. The 1983' Organizational Campaign
Subsequent to the perceived agreement on the part of
Papa to improve working conditions, no improvement
was forthcoming. In early April several employees, in-
cluding Papaionnou and Arvanitis, met with a business
representative of the Union, Demetrius Tsenekos and re-
ceived union authorization cards from •Tsenekos approxi-
mately on April 2. Papaioannou and Arvanitis solicited
their fellow employees at Respondent's facility for union
support. During the course of this solicitation Papaioan-
nou and Arvanitis had conversations with Respondent's
employees about the Union. Papaioannou collected about
12 cards around April 15 or 16. During this period, one
employee, Maria Rodriguez, told Patricia Georgacas, the
lunch shift supervisor and hostess, that Papaioannou had
solicited her support of the Union. Georgacas also over-
heard Papaioannou and Arvanitis discussing the Union.
The union organizing drive in April was "common
knowledge" at Respondent's facility. -
- C. The Discharge of Papaioannou and Arvanitis
On April 19 Papaioannou worked the dinner shift and
thus began at 4 p.m.. Arvanitis worked that day on the
luncheon shift and the dinner shift. As was the practice,
when a waiter worked the luncheon shift, he would pre-
pare his station for the dinner shift and-:therefore after
the luncheon shift was over would not report . for the
dinner shift until approximately 6 or 6:30 p.m . When Ar-
vanitis started work that evening he was asked . by. Papa
to come to his office. In the office Papa asked Arvanitis
why he was unhappy with his work and why he wanted
a' union in the restaurant . Arvanitis explained that the
same, ."old problems" had arisen regarding the poor
working conditions , the lack of work for senior waiters,
and threats regarding their work - secunty . Papa respond-
ed by telling Arvanitis that he was going to get rid of
him any way he could . Immediately after this conversa-
tion in Papa 's office, Arvanitis returned to his station and
observed the maitre d', who that day was Dean -Papa,
the son of General Manager Papa , and the waiters cap-
tain inspecting Arvanitis ' station. Arvanitis deemed this
unusual since the station was set up after the luncheon
shift and the maitre d' and captain had all afternoon to
do the inspection which was their practice . Both Arvani-
2 The above conversations are not alleged to comprise current unfair
labor practices and are introduced into this record to show Respondent's
response to earlier union organizing efforts
HY'S OF CHICAGO , LTD. -1081
tis and Papaioannou noted that for the rest of that
evening Papa was constantly present in their immediate
station areas and observed the two very closely. This
was unusual , based on previous practices of Papa.
The night of April 19 was a very busy night for Hy's.
The kitchen was characterized as- a "madhouse" with
waitresses calling for their orders simultaneously. Cour-
tesy in the kitchen between the waiters and the cooks
was not a common quality . The noise created confusion
accentuated by the use of several languages native to the
various employees . At approximately 9 or 9 : 30 p.m., Pa-
paioannou and Arvanitis were in the area where they
picked up their food orders The area is small and pro-
vides room for only two people at the order shelf at a
time. Papaioannou and Arvanitis were at the pickup shelf
at the same time. Papaioannou proceeded to pick up an
order from the shelf. As he did so he burned his hand on
the plate causing him to drop it and the order fell to the
floor breaking the plate. As this incident occurred, Pa-
paioannou called to Arvanitis to "Give me a napkin."
Arvanitis did not respond . Papaioannou reached for a
napkin on Arvanitis' arm and began to clean the spilled
food . The order was replaced and Papaioannou 's custom-
er served.
After the incident at the order shelf, Papa informed
Papaioannou and Arvanitis that he wanted to speak with
them in his office at the end of the shift . Papa told Pa-
paioannou that since he had been involved 'in a fight-in
the kitchen with Arvanitis that he had to let him go. No
further explanation of the reason for his discharge was
tendered . On that same evening Papa advised Arvanitis
that he also was fired because he had fought with Pa-
paioannou in the kitchen. No further explanation for Ar-
vanitis' discharge was tendered. _
IV. DISCUSSIONS AND CONCLUSIONS
A. Respondent 's-Scienter of Union Activity
An analysis of the evidence on the issue of the knowl-
edge of Respondent that union organizational efforts
were taking place among Respondent 's employees com-
pels the conclusion , which I draw , that Respondent,
through General Manager Papa and other supervisors of
Respondent, was aware that a union organizing effort
was underway among the employees . The history ' of
union efforts at this facility of Respondent is disclosed
from the evidence of a meeting in late summer or early
fall of 1981 . On this occasion , several of Respondent's
employees , including Papaioannou and Arvanitis, re-
quested Papa to loin them so they could "talk " Papa al-
leges that he refused to join them for the purpose of
"talking" and told them that if they had ' to talk they
could do so at Respondent 's facility. Notwithstanding
this alleged refusal, Papa met with this group and alleg-
edly told them that he was not there to have any type of
meeting saying , "I don 't want to hear - nothing." Pa-
paioannou and Arvanitis testified , however, that working
conditions were discussed at that time and Papa agreed
to remedy their complaints . As a result of this meeting,
the union campaign of 1981 was aborted . As time pro-
gressed , the employees became aware that no changes
were taking place and in April Arvanitis and Papaioan-
nou met with a union representative and undertook'ef-
forts toward the unionization of Respondent 's employees.
Notwithstanding Papa 's denials of a discussion on work-
ing conditions at the meeting of 1981, I conclude that
such a meeting was held; that Papa did participate at that
meeting and that matters regarding the then current
working conditions were discussed . I further conclude
that some accommodation was reached by Papa at that
meeting which gave his employees sufficient cause to
terminate the union organizational efforts at that time. I
find that Papa would not have ' attended the meeting at
the restaurant with his employees if he did not intend to
discuss the matters of working conditions at Respond-
ent's facility . While the evidence, in itself , does not di-
rectly support the knowledge on the part of Respondent
of union activities in 1983 , it does create in,Respondent a
sense of awareness that Papaioannou, Arvanitis, and
others in Respondent 's employ were union oriented and
that Papa was adverse to the organization of his employ-
ees. Papa 's claim that he attended the affair with his em-
ployees solely to heal "Greek music" is not credible.
In April Papaioannou and Arvanitis met with the
Union's Business Representative Tsenekos . They ac-
quired union authorization cards and from approximately
early April to mid -April distributed and solicited the
signing of these cards among . Respondent 's employees.
These cards were also delivered to some employees who
did not sign and return them to Arvanitis or Papaioan-
nou. In addition to the card distribution , discussion re-
garding the issue and solicitation in support of the union
movement was made by Papaioannou and Arvanitis to
other employees . Among these employees were waitress-
es Maria Rodriguez and Gloria Marlowe . Georgacas tes-
tified that Rodriguez had told her, on April 18, that
there was union activity in' the restaurant and that Pa-
paioannou had talked to Marlowe - about the Union.
Georgacas testified that she learned about the union ac-
tivity a couple of days before April 18 , and she had
heard Papaioaniou and Arvanitis discussing the Union in
the dining room . Georgacas stated that the union activity
among the employees at Respondent 's was "common
knowledge ." Georgacas was terminated by Papa alleged-
ly for economic reasons on April 19. She was given a
good letter of recommendation from Respondent, and I
find that her testimony is not tainted by her dismissal on
April 19 . Georgacas ' knowledge of a union organization-
al campaign among Respondent's employees and the in-
volvement of Papaioannou and Arvanitis compels me to
conclude that Papa and other supervisors of Respondent
were also aware of_ the union campaign. Although I
could impute the knowledge to Respondent through
Georgacas , a supervisor , I find it unnecessary to do so. I
conclude that Papa was aware of Papaioannou 's and Ar-
vanitis' activities as union campaign solicitors.
B. The Discharge of Papaioannou and:Arvanitis
On April _ 19, Papaioannou and Arvanitis were in-
volved in an incident in the kitchen at the place where
they pick up their food orders . This incident was charac-
terized by Papa as a "fight." Other witnesses character-
ized the incident as a less severe altercation or no fight at
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all. Significant to me is • the testimony of Carlos Perez, a
currently employed boiler man at Respondent's restau-
rant . Perez testified that the incident of that evening be-
tween Papaioannou and Arvanitis did not comprise a
"fight" and that there was no physical contact between
the parties and that the dropping of a dish and an order
would not be an unusual occurrence in Respondent's
kitchen. He further testified that his supervisor, Eduardo
Echeverria, the chef and kitchen supervisor, was asked
by Perez why Papaioannou and Arvanitis had been fired.
Echeverria responded that the firing was because "they
wanted to get the union in here." Carlos also testified to
an occurrence with Papa and Respondent's lawyer at
Respondent's restaurant a few days later. Papa intro-
duced Perez to his lawyer and asked Perez to explain
what had happened the night that Papaioannou and Ar-
vanitis were fired. Perez told the lawyer that there- had
been no fight, just a discussion. At the time, Papa stated
that there was a discussion and pushing and Echeverria
also responded saying there had been pushing. Perez
again stated that there had been no pushing, just a dis-
cussion . Again, approximately 2 weeks before this hear-
ing, Perez had another conversation with Respondent's
attorney. He again, during this conference, told the attor-
ney that there had been no fight. Notwithstanding this,
he was presented a letter to sign which he signed for fear
of losing his job if he refused. The letter is not in this
record. Perez further testified that later, in a conversa-
tion with Echeverna, he had asked, "Why so many sto-
ries when Alfredo Papa, myself and you know that there
was no fight." Echeverria answered Perez, "No, there
was no fight." Perez then confronted Echeverria saying,
"You only fired them because of the union. Because they.
were going to bring the union in here." Echeverria did
not respond to Perez but shrugged his shoulders. Carlos
Perez' testimony is of such a nature to cause me to credit
his testimony over Echeverria's denial of the conversa-
tion between the two. 'Perez is clear on two points: (1)
there was no "fight" between Papaioannou and Arvanitis
on the night of April 19 and (2) Echeverria told him that
the reason Papaioannou and Arvanitis were discharged
was because of their attempt to unionize Respondent's
employees. Perez' status as a current employee of Re-
spondent lends credibility to his testimony which he
must recognize is adverse to his employer's interest. This
quality alone enhances the credibility of this witness.
A waiter, Simon Stamatoglou , also testified that the in-
cident between Papaioannou and Arvanitis on the
evening of April 19 did not comprise a fight. Stamatog-
lou testified that the incident, including the breaking of a
plate with a food order, was not an unusual incident. He,
himself, ,had broken plates on previous occasions and he
was not disciplined by Respondent. Later in the evening
on April 19, .Stamatoglou , having learned of Papaioan-.
nou's and- Arvanitis' discharge, asked Papa why they
were let go. Papa told him because they had fought in
the kitchen. Stamatoglou told Papa at that time that
"-`there was no fight." He did not pursue the point with
Papa.
Another witness, Jesus Arellano, currently employed
as the "bread man" and "cook helper," testified to details
of the incident between Papaioannou and Arvanitis and
confirmed other witnesses' testimony and that of Pa-
paioannou and Arvanitis that the incident was not unusu-
al and did not comprise a "fight."
The General Counsel has also established that alterca-
tions between personnel at Hy's had previously occurred
and had not resulted in any disciplinary action whatso-
ever. Altercations between the maitre d', Charles Christ,
and employee-waiters have occurred in the past. In each
of these incidents no disciplinary action was taken by
Respondent. I do not find the specific incidents related in
this incident as very probative of the expected or usual
response of Respondent to such incidents. It is clear that
each incident must be judged upon the facts and circum-
stances of the occurrence. It should suffice to say that
each of the incidents which the General Counsel's wit-
nesses relate seemed to be more severe in nature than
those alleged to have occurred on April 19 between Pa-
paioannou and Arvanitis. The fact that no disciplinary
measures were taken in these previous episodes suggests
that a strictly enforced. rule against participation in such
altercations did not exist at Respondent's facility.
It is my conclusion that Respondent's General Manag-
er Papa sought and found, to his satisfaction, what he
deemed a reasonable cause for discharging two prounion
employees. The fact as Georgacas testified that just prior
to the date of discharge, the organizational efforts of
prounion employees were "common knowledge" at Re-
spondent's place of business and the discharge of the two
employees for an apparent minor infraction, supports the
General Counsel's charges that the discharge of these
two was because of their protected activities.
From this, record, I further conclude that Papa was
aware of Papaioannou's and Arvanitis' current efforts to
organize Respondent's employees; that Papa had ex-
pressed his opposition to unionization of his employees
and that he conducted unusual surveillance of Papaioan-
nou and Arvanitis in order to find a cause for their dis-
charge. The incident of April 19, characterized by Papa
as "a fight," was not such an unusual incident nor such
an infraction of any. existing rule of Respondent to war-
rant the precipitous discharge of these two employees.
From the foregoing, I conclude that Papaioannou and
Arvanitis were discharged by Papa because of their ef-
forts to organize the employees of Respondent in viola-
tion of Section 8(a)(3) of the Act.
On April 19, the date on which Papa discharged Pa-
paioannou and Arvanitis, Papa threatened Arvanitis with
discharge when he said to Arvanitis that he would get
rid of him in some way. I credit the testimony of Arvani-
tis in this regard and discredit Papa's denial of the con-
versation since I conclude that the ongoing, campaign to
organize Respondent's employees was, as Georgacas tes-
tified, "common knowledge" at Respondent's restaurant.
I find Papa's insistence that on April 19 he did not know
of the existence of an ongoing union organization cam-
paign to be less than candid. Papa's credibility is further
subject to doubt when one evaluates the -testimony re-
garding the 1981 meeting with several of his employees.
Papa contends that he attended that restaurant with his
employees for the purpose of hearing "Greek music" and
he did not discuss then current working conditions. Ac-
HY'S OF CHICAGO, LTD. 1083
cordingly , I -credit Arvanitis ' testimony regarding the
dialog of the conversation in Papa 's office on April 19,
prior to his being , subjected to unusual surveillance and
immediate discharge purportedly for - participating in a
disturbance which Papa seized on as an excuse to pre-
cipitously discharge Papaioannou and Arvanitis I, there-
fore , conclude that Respondent , through , Papa , threat-
ened Arvanitis with discharge because of his engagement
in activities on behalf of the Union. This incident also
supports my finding that Papa interrogated Arvanitis re-
garding his union sympathies during that conversation in
his office on April 19 and that both the threat to dis-
charge and the interrogation as to union sympathies com-
prise violations of Section 8(a)(1) of the Act.
V. THE CONSOLIDATED REPRESENTATION CASE
A. The Union's Objections to the Election
The Union filed six objections to conduct affecting the
results of the election of May 20.
Objection 1 alleges that Papaioainou and Arvanitis
were discharged by Respondent with the intent and
effect of intimidating and restraining the employees of
Hy's in the bargaining unit in their free choice of bar-
gaining representative. .
As I have concluded above, the discharge, of Pa-
'paioannou and Arvanitis was not because they engaged
in improper conduct while in the course of their employ-
ment , but rather that -because they were known to be
union organizers and the subjects of a pretextual reason
for discharge . I have found that the true reason for the
discharge was their union organizing efforts and, there-
fore, Objection 1 of the Union to' the conduct of the
election and the refusal to count a ballot - for Papaioan-
nou and 'Arvanitis constitutes a valid objection and the
objection is sustained
Objection 2 alleges that the Excelsior list provided to
the Union by the Employer contained several mistakes in
the addresses of the employees to the extent that over 50
percent of the information was incorrect and of no use to
the Union , and thus deprived the Union of its right of
access to the employees of the particular bargaining unit
to the detriment and prevention of a fair election. -
There is no evidence in this record regarding the con-
tent of the Excelsior list and ,. therefore , the extent to
which , if any , such list was insufficient Objection-2 is
therefore rejected. -
Objection 3 alleges that during the week preceding the'
election the general manager , Alfredo Papa , made unilat-
eral promises and representations of improved working
conditions and benefits to employees included in the bar-
gaining unit in .return for those employees ' antiunion
vote. -
This record does not contain evidence to establish that
Alfredo Papa had made any promises or representations
of improved- working conditions or benefits to the em
,ployees. The. extent to which -this record discloses such
promise - of improvements in working conditions oc-
curred in late summer or fall of 1981 and is not an occur-
rence which took place during the critical period of -the
election of 1983. The foregoing objection therefore is
denied. - - - .
Objection 4 alleges that Juan Crispo was prohibited
from entry to the polling place by Alfredo Papa with the
intent to interfere and restrain the employee from the ex-
ercise of his right to vote.
There is no evidence regarding this alleged objection
in this record and such objection is denied.
.
Objection 5 alleges that on the date of the election,
several hours after the completion of the election, Al-
fredo Papa verbally harassed and intimidated employees
working in the kitchen of the restaurant . The intent and
the effect of this conduct were to create an atmosphere
of intimidation to prevent a fair election in the future if
the election is set aside by the NLRB. '
There is no evidence to support the allegations of this
objection in the record and the same is rejected.
Objection 6 relates specifically to the challenges of the
ballot of Renee Papa because of his familial relationship
to Alfredo Papa , his father who is the general manager-
of Respondent , and. Dean Papa, Renee's brother, who is
a supervisor/manager of Hy's of Chicago.
- The Board has historically applied one of two sections
of the Act in determining whether or not an employee is
a member of the bargaining unit or excluded therefrom.
The most apparent is the Section 2(3); exclusion- of an
employee whose spouse or parent in his employer. Sec-
tion 9 of the Act provides that the Board shall determine
in each- case an appropriate unit and those who shall be
.numbered in that unit. -
In NLRB v. Jackson Farmers, 432 F:2d 1042 (10th Cir.
1970), the court held- - -
Although one who is the wife of the- general man-
ager is not-within the § 2, •(3) exclusion from the
.definition of .',employee"- of "any. individual em-
ployed by a parent or spouse ," we are of the opin-
ion that in the exercise of its discretion under § 9
the Board may exclude from a bargaining- unit an
employee - who is related to a member - of manage-
ment , but not an-owner, and who is granted special
privileges . Uyeda v. Brooks, 6 Cir., 365 F.2d 326,
329.
It is clear that Alfredo Papa ,, the general manager of
Respondent, is not an owner, therefore, -under the strict
interpretation of. the provisions - of Section 2(3). Renee
Papa , the son of Alfredo Papa, is not disenfranchised by
the definition of "employee" as contained in this section.
The Board has the duty to conduct - an equitable election
among all employees with a common interest in regard
to the employer . Renee Papa , in the course- of his em-
ployment, enjoyed certain advantages because of his rela-
tionship to the ,general manager . -Renee Papa frequently
acted as maitre d', a supervisory position , in the absence
of the usual supervisors. He was able to exercise menu
selection for his daily meal. He was also given access to
the kitchen to prepare that meal and he was able to
schedule vacations for extended :periods contrary to that
allowed other waiters . The record is uncontradicted that
Renee Papa,-with the consent of management , exercised
certain privileges which were not available to other em-
ployees in his classification . -It is-also true that Patricia
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Georgacas, when asked with-regard to her authority as a
supervisor, testified as follows:
Q. Did you have the authority to recommend
wage increases?
A. I had to ask Alfredo or Renee about the cash-
iers because we couldn't -keep our cashiers because
they weren't making enough money.
From the foregoing, it is my conclusion that Rene Papa
did not participate in a "community of interest" with
other members of the bargaining unit. For this reason,
Renee Papa's vote should not be tallied in the results of
the election and accordingly the objection of the Union
to the vote of Renee Papa is sustained.
B. The Objections of Respondent to'Conduct of the
Union Before and During the Election
Respondent has filed four objections to the conduct of
the Union affecting the results of the election.
Objection 1-On May 20, the Union massed business
agents and other representatives of the Union on Walton
Street close to Hy's of Chicago, Ltd., prior to the open-
ing of the poll and continued to maintain these persons
outside the restaurant while the polls were open.
The physical location of the election was in'the envi-
rons of Respondent's restaurant. The restaurant is located
in an urban area near the north side of Chicago where
are located 'numerous restaurants, cocktail lounges,
shops, and other places of business. There is no-evidence
in this record that any unauthorized person was present
in the polling place or had impeded the access and egress
of employees or other-persons to such polling place. The
evidence discloses that several persons including Pa-
paioannou and a union business manager were located
outside the restaurant and away from the entrances of
the restaurant in positions where they could intercept
employees -on :their way to work at Respondent's. In at
least one case, the interception comprised a short attempt
to engage the employee in- conversation and to distribute
to that employee certain prounion written material. No
effort to impede the employees' access to the polling
place or to unduly intimidate him -in the election process
occurred. Objection 1 is accordingly rejected.
Objection 2-On May 20, the business agents or other
representatives of the Union stationed themselves outside
Hy's of Chicago, Ltd., for the purpose of making an
effort to stop most the employees' campaign for -the`
Union and otherwise interfere and coerce employees
who were attempting to enter their workplace and vote
in the election:
As stated above, this record is without evidence of any
effort on the part of union business agents, or other rep-
resentatives of the Union, performing any act which
could be interpreted as interference or coercion of em-
ployees on their way to work to vote in the election. No
evidence in this record establishes acts on the part of the
union representatives comprising efforts to stop'(except
to discuss the election issues) any employee or commit
any act which is deemed evidence of coercion or inter-
ference in the election process. -
Objection 3-On May,20, the Union's observer (Pa-
paioannou) at the election was the person who was dis-
charged for and the subject of an unfair labor- practice
charge pending' before the Board's Regional Office, the
dismissal of which was being recommended after a full
week of investigation. Both parties were aware of this
recommendation. Hy's of Chicago, Ltd., objected to Pa-
paioannou's presence by advising Board Agent Miller
and the Union's attorney prior to the election.- His pres-
ence 'created, in effect, a stamp of approval by the Board
of his disruptive conduct which led to his discharge and
was otherwise coercive so that the free will of the em-
ployees' vote was impaired..
This objection, in effect, alleges that the presence of
Papaioannou as the Union's observer at- the, election cre-
ated a stamp of approval by the Board .of Papaioannou's
conduct. There is no evidence in this record that, as an
observer. for the Union, Papaioannou committed acts
which in any way compromised the integrity of the elec-
tion. No charge of "electioneering" by.Papaioannou has
been alleged to have occurred in the polling place and in
his, capacity as a union observer. I fail to see how the ap-
pointment of Papaioannou as an observer for the Union
could give rise 'to the inference of a "stamp of approval"
of Papaioannou's actions by the Board. An observer in
such an election is by the nature of the procedure an ad-
vocate of the party appointing him. As discussed earlier
in this decision, Papaioannou was known by management
and other employees to be an advocate of the Union;
therefore, his appointment as an observer at the election
should be of no significance or surprise to other employ-
ees. I fail to see how as, Respondent argues , such cir-
cumstances would give rise to a perception of Board ap-
proval of his conduct. There is no evidence in this
record sufficient to support the allegations in Objection 3
of Respondent and the same is rejected.
Objection 4-At various times prior to the election
and continuing, until the day of election, employees were
told by the Union and its supporters that they could be
discharged if they did not vote for the Union.
- The evidence regarding the issue raised by this objec-
tion comprises principally the -testimony of Manuel Sara-
bia who in addition -to being employed by Respondent
was employed at another restaurant whose employees
were then represented by the Union. Sarabia testified
that Union Business Agent Tsenekos had a conversation
-.with him at the second restaurant of his employment
wherein he told Sarabia that if he did not vote for the
Union Tsenekos would have him fired which he could
do because of the dual representation. Tsenekos denies
that such a statement ' was made. He admits that he dis-
cussed the election with Sarabia but states that he merely
reminded him to vote in the election and to vote for the
Union. Sarabia is a Spanish-speaking employee and un-
derstands little English. It was necessary to employ an
interpreter during. the - course of his testimony in this
case. There is nothing in the demeanor of either Sarabia
or Tsenekos to detract from their trustworthiness and
also no inconsistency in the testimony of these witnesses
which would-enable me to make a judicial determination
as to who was telling the truth and who was not. Al-
HY'S OF -CHICAGO, LTD
though I do have difficulty in concluding that Sarabia
understood the extent of his conversation with Tsenekos,
notwithstanding this potential question, I am unable to
determine from the evidence on this issue a resolution of
truth. I, therefore, must conclude that the proponent of
the objection has failed to meet the obligation of prepon-
derance of the evidence on this objection.
The other source of evidence in this record, tending to
support allegations of a threat of discharge if they did
not vote for the Union, arises from the testimony of Jack
Culhane. Culhane, on the day of the election while ap-
proaching the restaurant to cast his vote and begin work,
was confronted by Papaioannou and a union official. The
content of this conversation which could be interpreted
as a threat occurred when Tsenekos told Culhane that he
could "end up like Papaioannou and Arvanitis." This I
concluded to be a stretch and torture of the language
used during this conversation. At best it was an opinion
of the speaker and, even if a threat, is one which he
could not carry out or expect to influence For the rea-
sons above stated and in the absence of any substantial
evidence to the contrary, 1-find that Objection 4 of Re-
spondent to the Union's conduct at the election is reject-
ed.
Objection 5-Prior to the election, the Union made
harassing telephone calls to the homes of employees and
improperly obtained unpublished telephone numbers
from the confidential records of Hy's of Chicago, Ltd.,
thereby creating an environment of fear among the em-
ployees. .
The evidence in support of this objection was prof-
fered through Tyna Bell and comprised a dialog by tele-
phone with an alleged union official. -The witness was--
unable to adequately establish the identity of the caller
and the testimony comprising the telephone conversation
was ruled inadmissible. Respondent's counsel in its brief
requested a reconsideration of this ruling and a review of.
the record in this regard compels me to sustain my previ-
ous ruling and exclude the .testimony.. Therefore, Objec
tion 5 is rejected. -
CONCLUSIONS OF LAW (CASE 13-CA-23168-1-3)
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Hotel Employees and Restaurant Employees,
Local 1, AFL-CIO and the Chicago Joint Executive
Board of the Hotel and Restaurant Employees and Bar-
tenders International Union , AFL-CIO is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. Respondent has threatened an employee with dis-
charge because he engaged in activities on behalf of the
Union and in order to discourage support for the Union.
in. violation of Section 8(a)(1) of the Act.
4. Respondent has unlawfully interrogated its employ-
ees regarding activities and sympathies on behalf of the
Union in violation of Section 8(a)(1) of the Act.
5. Respondent has discharged Elias Papaioannou and
Gus Arvanitis because of their union activities in viola-
tion of Section 8(a)(1) and (3) of the Act.
The aforestated acts comprise unfair labor practices af-
fecting commerce within the meaning of the Act.
1085
THE REMEDY -
Having found that Respondent has engaged in unfair
labor practices, I shall order that it cease and desist from
engaging in any similar or related conduct and that it
take certain affirmative action by posting an appropriate
notice and taking other affirmative action designed to ef-
fectuate the purposes and policies of the Act.
Having also found' that Respondent discharged Elias
Papaioannou and Gus Arvanitis, I recommend that Re-
spondent be ordered to reinstate them to their former po-
sitions or, if such positions no longer exist, to a substan-
tially equivalent position without prejudice to their se-
niority or other rights and privileges they previously en-
joyed,and to make them whole for any loss of earnings
they may have suffered by reason of their discharge by
paying to them a sum of money equal to that which they
would have normally earned absent their discharge less
earnings during such period, to be computed in the
manner described in F W. Woolworth Co., 90 NLRB 289
(1950), with interest computed in the manner descnbed
in Florida Steel Corp., 231 NLRB 651 (1977), and Isis
Plumbing Co., 138 NLRB 716 (1962).
In view of my finding heretofore made that Objections
1 and '6 of the Union to the conduct of the election are
well taken and are sustained , I.shall recommend that the
Regional Director for Region 13 shall open and count
the ballots cast by Gus Arvanitis and Elias Papaioannou
and prepare a revised-tally of ballots. If the revised tally
reveals'the Petitioner has received a majority of the bal-
lots cast, the Regional Director shall issue a Certification
of Repesentative. If, however, the revised tally shows
that the` Petitioner has not received the majority of such
ballots, the Regional Director shall set aside the election
and forward the case to the Board for further consider-
ation. -
The ballot of Renee Papa to which a challenge had
been made shall not be counted in the revised tally of
votes for the reasons-heretofore set forth.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed3
ORDER
The Respondent, Hy's of Chicago, Ltd., Chicago, Illi-
nois, -its --officers, agents, supervisors, successors, and as-
signs , shall -
1. Cease and desist from .
(a)• Threatening its employees' with ,discharge because
of their union activities or sympathies on behalf of the
Union. -
(b) Interrogating its employees regarding their union
membership, activities, and sympathies.
(c) Discharging employees, because of their union ac-
tivities or activities protected by the provisions of Sec-
tion 7 of the Act. i
3, 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
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Elias Papaioannou and_ Gus Arvanitis full re-
instatement to , their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed, and make them whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set forth
in the remedy section of the decision.
(b) Remove from its files any ' reference to the dis-
charge of Elias Papaioannou and Gus Arvanitis and
notify the employees in writing that this has-been done
and that the discharge will not be used against them in
any way.
(c) Preserve and,. on request, make available to the
Board or its agents for examination and copying, 'all pay-'
roll records; social security payment records, timecards, _
personnel records and reports, and all -other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post in a conspicuous place on Respondent's prem-
ises copies of the attached notice marked "Appendix."4.
Copies of.the notice, on forms provided by the Regional
Director for Region 13, _ after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for-60 consecutive days in conspicuous places including
all places where notices to employees eligible to vote are
customarily posted. Reasonable steps shall, be taken, by
the Respondent to ensure that 4he notices are not altered,
defaced, or covered by any other material.
(e) Notify the. Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent.has taken'to comply.
IT IS FURTHER RECOMMENDED that the Regional Di-
rector for Region 13 shall, within 107 days from the date
of this decision, open and count the ballots by Elias Pa-
paioannou and Gus Arvanitis in Case 13-RC-16211 and
prepare and serve on the parties_a revised tally of ballots.
If the revised tally reveals that the Petitioner has re-
ceived a majority of the valid ballots cast, the Regional
Director shall issue -a_ Certification of Representative.
However, if the revised tally shows that the Petitioner
has not received a majority of the valid ballots cast, the
Regional Director shall set aside the election results and
forward the' case to the Board for further consideration.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
•I
NATIONAL LABOR RELATIONS BOARD.
An Agency of the United States Government
The National Labor Relations Board has found that we
have violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
Section 7.of the Act gives employees these,rights:
To organize'
To form, join, or assist in the Union
To 'bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
" tion.
'To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT interrogate you regarding your union
activities and sympathies or the activities and sympathies
of your coemployees.
WE WILL NOT threaten employees with discharge be-
cause of protected concerted activities.
WE WILL NOT discharge employees because of their
exercise of protected concerted activities on-behalf of the
Union. -
WE WILL NOT in like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guar-
anteed you by Section 7. of the Act'.
WE WILL offer Elias Papaioannou and Gus Arvanitis
immediate and full reinstatement to their former jobs or, .
if those jobs no longer exist; to a substantially equivalent
position without' prejudice to their seniority or any other
rights or privileges previously enjoyed, and WE WILL
make them whole for any loss of earnings or other bene-
fits resulting from their discharge, less any net interim
earnings plus interest.
WE WILL notify Elias Papaioannou and Gus Arvanitis
that we have removed from our files any references to
their discharges and that the discharges will not be used
against them in any way.
HY'S OF CHICAGO, LTD.
4 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the. notice reading "Posted by Order of the Na-
tional Labor Relations Board"- shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "