Jai Lai Cafe, Inc.

National Labor Relations Board - Board Decisions

Aug 8, 1972

198 N.L.R.B. 781 (N.L.R.B. 1972)

JAI LAI CAFE, INC 781
Jai Lai Cafe, Inc. and Local Union No. 505 , Hotel,
Motel and Restaurant Employees and Bartenders
International Union, AFL-CIO. Case 9-CA-6605
August 8, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On April 3, 1972, Trial Examiner John F. Funke
issued the attached .Decision in this proceeding.
Thereafter, the Respondent filed exceptions and a
supporting brief, and the General Counsel filed
limited exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm, as expanded herein,
the Trial Examiner's rulings, findings,' and conclu-
sions.
AMENDED CONCLUSIONS OF LAW
Paragraph I of the Trial Examiner's Conclusions of
Law is modified to read as follows:
1. By furnishing employees with union withdraw-
al forms for their signatures; by inducing employees
to withdraw from the Union and by inducing
employees to refrain from further strike activity,
Respondent violated Section 8(a)(1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Jai Lai Cafe, Inc., Columbus, Ohio, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Providing its employees with union withdrawal
forms for their signatures.
(b) Inducing its employees to withdraw from the
Union.
(c) Inducing its employees to refrain from further
strike activity.
(d) Engaging in any like or related conduct
interfering with, restraining, or coercing its employ-
ees in the exercise of their rights guaranteed by the
Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Post at its restaurant at Columbus, Ohio, copies
of the notice attached hereto and marked "Appen-
dix." 2 Copies of said notice on forms provided by the
Regional Director for Region 9, after being duly
signed by Respondent's representatives, shall be
posted by it for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 9, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
i The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board 's established policy not to overrule a
Trial Examiner 's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A 3) We have carefully examined the record and
find no basis for reversing his findings
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read " Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT provide our employees with
union withdrawal forms for their signatures.
WE WILL NOT induce our employees to with-
draw from the Union.
WE WILL NOT induce our employees to refrain
from further strike activity.
WE WILL cease and desist from engaging in any
like or related conduct interfering with, restrain-
ing or coercing our employees in the exercise of
their rights guaranteed by the Act.
JAI LAI CAFE, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building Room 2407,
198 NLRB No. 108
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
550 Main Street , Cincinnati , Ohio 45202, Telephone NOTICE
513-684-3686.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: This case was brought
before the National Labor Relations Board upon:
1. A charge filed by Hotel , Motel and Restaurant
Employees and Bartenders International Union , AFL-CI-
O, Local Union No. 505, herein Local 505, against Jai Lai
Cafe , Inc., herein Jai Lai, alleging Jai Lai violated Section
8(a)(1) and (3) of the Act. The charge was filed November
19, 1971.
2. A complaint by the General Counsel against Jai Lai
alleging Jai Lai violated Section 8(a)(1) of the Act which
issued January 5, 1972.
3. An answer of Jai Lai denying the commission of any
unfair labor practices, dated January 11, 1972.
4. A hearing before me at Columbus, Ohio, on
February 23, 1972.
5. Beefs received from the General Counsel and
Respondent March 27, 1972.
Upon the entire record in this case and from my
observation of the witnesses while testifying I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF JAI LAI
The complaint alleges and the answer admits that Jai Lai
is engaged in the restaurant business at Columbus, Ohio,
and that during the past 12 months (preceding issuance of
complaint) it purchased goods and materials valued in
excess of $50,000 from suppliers located in the State of
Ohio over whom the Board would assert jurisdiction based
on the Board 's direct inflow and outflow standards for
nonretail enterprises . It is also alleged and admitted that
Jai Lai , during the same representative period , had a gross
volume of sales in excess of $500,000.
I find Jai Lai is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 505 is a labor organization within the meaning of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issue
The issue presented is whether Jai Lai, by distributing to
and furnishing employees with forms indicating the
employee wished to withdraw from Local 505, violated
Section 8(a)(1) of the Act. The form in question, General
Counsel's Exhibit 2 (signature omitted), reads:
LOCAL 505
HOTEL, MOTEL AND RESTAURANT EMPLOY-
EES AND BARTENDERS INTERNATIONAL UN-
ION
140 East Spring Street
Columbus, Ohio 43215
If you want to work during the strike , the Union may
try to fine you for crossing the picket line. They cannot
legally fine you if you withdraw from membership in
the Union. You can withdraw from the Union by
signing the attached form and sending it to the address
on the attached form . Keep a copy of this and send it
by certified mail to the address on the form . When the
strike is over, it will only cost your regular initiation fee
to get back in the Union . The Union must legally offer
you this membership if you want it. If they refuse, you
are one of the lucky ones who does not have to pay to
work here . Isn't it worth working for all that money
and working for a cost of $7.50 to $15.00 initiation fee.
I hereby withdraw my membership in Local 505.
HOTEL, MOTEL AND
RESTAURANT
EMPLOYEES AND
BARTENDERS
INTERNATIONAL
UNION
140 EAST SPRING STREET
COLUMBUS, OHIO
43215
Dated this . . . day of ..., 1971.
The origin of this form was not disclosed at the hearing.
B. The Evidence
Eddie Warner, president and business manager of Local
505, testified that Local 505 operated under a collective-
bargaining contract covering the employees of Jai Lai
which expired on September 26, 1971.1 Upon the expira-
tion of the contract the employees voted to strike and
struck at noon on October 2.
Mary DeStazio was employed as a banquet waitress by
Jai Lai . Peter Halter was banquet manager and John
Staker was assistant banquet manager . It is admitted that
both were supervisors within the meaning of the Act.
DeStazio testified that she first learned of the strike on
Sunday, October 3 , having been out of town on October 2.
She received a call at her home from Staker on the 3rd
asking if she would work on Monday, the 4th, and was
then told there was a strike . She informed Staker she would
not cross a picket line . On the 4th she took part in the
picketing. Thursday, October 7, was payday and she went
to the restaurant , saw Staker outside the building, asked
him if she could get her paycheck , and was told she could.
She received her check from the cashier and on her way
I Unless otherwise noted all dates hereafter refer to 1971
JAI LAI CAFE, INC
out stopped to talk to Kenny Taylor who described
himself as an expediter in the kitchen;4 and was then
approached by Peter Halter who asked her if she wanted to
come back to work. She said she did and Halter, after
talking to David Girvas, general manager of the restaurant,
took her down to the banquet room together with Taylor.
According to DeStazio, Halter searched his desk and then
told Taylor he did not have any of "those papers" and
Taylor told him he would get some. Taylor then left the
room and came back and handed some papers to Halter.
Halter gave her one of the forms (G.C. Exh. 2, supra) to
read and Taylor told her she would have to sign because it
was for the "company's protection so they don't have to
pay your fine to the union." Halter and Taylor then left the
room. Halter returned to the room as she was signing and
she gave him back the signed form. He then gave her a
copy to show to her husband whom she described as a
strong union man. She agreed to return to work at 3:30
p.m. on Monday, October 11. She then return home where
she showed the form to her husband who said he would
leave it (her return to work) up to her. DeStazio, however,
did not report to work on October 11. Early in her
testimony she stated she had not worked at Jai Lai since
October 2.
With respect to this incident, which he fixed as occurring
on Friday, October 8, Halter testified that he saw DeStazio
on the dock and that she told him she had come to get her
check. He got her check and tip money and DeStazio then
started crying and told him she did not want to cross the
picket line but at the same time asked for her job back,
Halter then took her down to his office to check his
schedule and to tell her when work was available. Halter
stated Kenny Taylor came into the room while they were
talking and that DeStazio asked Taylor for a form for
withdrawal from the union. Taylor left the room and
returned with one form which he gave to DeStazio.
DeStazio asked Halter if she should sign it and Halter told
her that she did not have to sign anything. He told her to
talk it over with her husband and to report to work on
Monday. She did not report and did not call in.
Kenneth Taylor testified on direct that he was employed
as a broiler man and recalled that on October 11 Mary
feStazio came to the back door and asked him where she
could find Halter. Halter came up and then went to get her
check and DeStazio then asked Taylor if she could get her
job back. When Halter came back the three of them went
down to his office and at this time DeStazio was crying.
She asked Taylor for a withdrawal form and Taylor went
to the chef's office and got two. He returned and gave them
to her. When she asked him what it meant Taylor
interpreted it (he was not more specific) but told her she
did not have to sign it. He also told her to take it home and
have her husband sign it as he did not know whether it was
2 The testimony does not establish that Taylor was a supervisor within
the meaning of the Act _
3_ Taylor stated that when he first saw the forms he asked Girvas if they
were legal and was told by Girvas that he had nothing to do with them
a On cross-examination Williams made the unusual admission that he
picketed Jai Lai during the hours he was not working, an ambivalence in
loyalty not usually tolerated by either an employer or a union
5 I do not find it necessary to hold that Taylor was a supervisor within
783
legal. Taylor stated that he knew her husband was a
member of a railroad union and would be better able to
advise her.3
On cross-examination Taylor testified that he was given
forms on October 2 by another employee and asked to
distribute them. He refused to distribute them but put them
in the chef's office for reasons never explained.
John Staker testified that he was leaving the restaurant
on October II and met DeStazio at the back door. When
she asked for her check he told her Halter would get it for
her. Staker testified that about this time she started crying
because she could not face the other girls if she returned to
work. Halter came up and asked him for her check and
discussed returning to work and at this point Staker left.
On Monday morning she called Staker and told him that
because of her husband's feelings she could not return to
work.
Joseph Williams testified that he had been an employee
of Jai Lai since April and was a member of Local 505. He
went out on strike on Saturday, October 2, and stayed out
on Sunday. On Tuesday he called Girvas and asked if he
could come back to work and was told to report Friday.
When he reported he was called to the office by Girvas and
asked to sign a "piece of paper, to withdraw my
membership from Local 505." Girvas told him that if he
worked without signing the Union would fine him $1,000.
Williams did not sign but left the paper with Girvas and
went to work. On the following Wednesday Girvas asked
him if he was ready to sign and Williams then signed to
pieces of paper in Girvas' office, one of which he kept and
one of which Girvas kept. The paper he signed and kept
(G.C. Exh. 13) was identical in form and content with
General Counsel's Exhibit 2.4
Girvas testified unequivocally that he had no conversa-
tion with Williams on either Tuesday or on October 8 or at
any other time concerning withdrawal from the Union. He
never told Williams he would be fined if he did not sign
nor did he give him any withdrawal form. He denied ever
having threatened any employee with discharge for
refusing to sign a withdrawal form and corroborated
Taylor's testimony that when Taylor asked him about the
forms he told Taylor he had nothing to do with them.
On this sharp conflict in testimony the matter rests.
C. Conclusions
I find that Jai Lai violated the Act by furnishing
employees DeStazio and Williams with union withdrawal
forms. I credit the testimony of DeStazio that when she
told Halter she did not want to cross the picket line but
wanted to get her job back, Halter took her to his office
where he had Taylors get the withdrawal forms and gave
her two, one for her signature and one to take home. She
signed one form in his presence and gave it to him. This
form was received by Local 505.6 The extent of Jai Lai's
participation was sufficient to constitute coercion and
the meaning of the Act. If he acted as no more than a messenger-for Halter
in providing the forms it was still Halter who gave the forms to DeStazio In
these circumstances I find Halter responsible for the entire transaction
6 Very specifically I do not credit the testimony of Halter and Taylor
that DeStazio asked for the forms There is nothing in the record to indicate
that DeStazio knew of the existence of the forms or that she was sufficiently
sophisticated to realize that a withdrawal was necessary to protect her
against possible fines A reading of her testimony is in itself sufficient to
establish that she was not knowledgeable in labor relations
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restraint within the meaning of the Act. It involved not
only assistance to an employee in withdrawing from Local
505 but also inducement to refrain from further strike
activity. The statute expressly forbids such interference.
The case of Joseph Williams rests solely on the
resolution of credibility between Williams and Girvas. I
resolve this in favor of Williams only partly because his
demeanor gave the impression of truthfulness. I also find it
hard to believe that an employee who worked during the
strike (albeit he also served as a picket) would concoct such
an interview with his employer unless it took place. For the
same reasons stated with regard to DeStazio, I find
coercion and restraint in furnishing Williams with with-
drawal form.
The case cited by Jai Lai, Kay Electronics, Inc., 167
NLRB 1104, is not to the contrary as counsel contends. In
that case Trial Examiner Reel found Respondent violated
the Act by offering to prepare and preparing letters of
withdrawal from the Union. He did not find a violation
where the employee initiated the request. This case, on the
facts as I have found them, falls within the finding of
violation of the Trial Examiner in Kay.
With respect to the issue of whether a remedial order is
warranted by the findings of violation herein, I would defer
to the decision of the court in International Union, United
Automobile, Aerospace and Agricultural Implement Workers
of America (UA W), [Omni Spectra, Inc ], v. N. L. R. B., 427
F.2d 1330 (C.A. 6), and recommend an order . I would also
state that the impact of the violation upon the rights of the
two employees involved is sufficient , because of its nature,
to warrant an order regardless of the size of the unit.
Upon the foregoing findings and upon the entire record I
make the following:
CONCLUSIONS OF LAW
1. By furnishing employees with union withdrawal
forms for their signatures Jai Lai violated Section 8(a)(1) of
the Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found Jai Lai engaged in unfair labor practices
as set forth above it shall be recommended that it cease
and desist from the same and take certain affirmative
action necessary to effectuate the policies of the Act.
[Recommended Order omitted from publication.]