Joe & Dodie's Tavern

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 401 (N.L.R.B. 1981)

JOE & DODIE'S TAVERN
Dick Seidler Enterprises, d/b/a Joe & Dodie's
Tavern and Hotel and Restaurant Employees
and Bartenders Union, Local No. 49, AFL-
CIO. Cases 20-CA-14760 and 20-RC- 14840
January 14, 1981
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
ZIMMERMAN
On July 31, 1980, Administrative Law Judge
Gordon J. Myatt issued the attached Decision in
this proceeding.' Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel submitted a brief in answer thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge and to adopt his remedy 3 and recommended
Order, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Dick Seidler Enterprises, d/b/a Joe & Dodie's
Tavern, Folsom, California, its officers, agents, suc-
' August 13, 1980, the Administrative Law Judge issued an errata to
his Decision.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear presponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Prod-
ucts Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing his
findings.
a In his remedy, the Administrative Law Judge provided for a 5-day
grace period after an unfair labor practice striker applies for reinstate-
ment before the obligation attaches to Respondent to offer such a striker
reinstatement.
The Board has found that the 5-day period is a reasonable accommoda-
tion between the interests of the employees in returning to work as quick-
ly as possible and the employer's need to effectuate that return in an or-
derly manner. Drug Package Company, Inc., 228 NLRB 108 (1977). Ac-
cordingly, we hereby modify the Administrative Law Judge's remedy to
provide that, if Respondent herein has already rejected, or hereafter re-
jects, unduly delays, or ignores any unconditional offer to return to
work, or attaches unlawful conditions to its offer of reinstatement, the 5-
day period serves no useful purpose and backpay will commence as of
the unconditional offer to return to work. Newport News Shipbuilding and
Dry Dock Company, 236 NLRB 1637, 1638 (1978).
Member Jenkins, for the reasons set forth in his partial dissent in Drug
Package Company. Inc., would begin Respondent's backpay obligation
from the date of each striker's unconditional offer to return to work. In
addition, Member Jenkins would award interest on the backpay due
based on the formula set forth in his dissent in Olympic Medical Corpora-
tion, 250 NLRB 146 (1980).
254 NLRB No. 45
cessors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Insert the following as paragraph (f):
"(f) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them under Section
7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the complaint alle-
gations not specifically found herein be, and they
hereby are, dismissed.
IT IS FURTHER ORDERED that Case 20-RC-14840
be, and it hereby is, remanded to the Regional Di-
rector for Region 20 for the purpose of opening
and counting the ballots of Donald Sproull and
Barbara Daley and, thereafter, preparing and caus-
ing to be served on the parties a revised tally of
ballots on the basis of which she shall issue an ap-
propriate certification.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT establish and maintain a rule
prohibiting employees from eating or taking
meals home after work in order to discourage
their support for Hotel And Restaurant Em-
ployees And Bartenders Union, Local No. 49,
AFL-CIO.
WE WILL NOT change our prior practice and
thereby forbid employees from remaining on
the premises longer than 15 minutes after the
completion of their shifts in order to discour-
age their support for the Union.
WE WILL NOT advise employees that they
will lose the right to present their grievances
directly to management if they are represented
by the Union.
WE WILL NOT reduce employees' working
hours because they have selected the Union as
their collective-bargaining representative.
WE WILL NOT discharge any employees be-
cause they support or engage in activities on
behalf of the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the exercise of their right to self-organization,
to form, join, or assist Hotel and Restaurant
Employees and Bartenders Union, Local No.
49, AFL-CIO, or any other labor organiza-
tion, to bargain through representatives of
their own choice, and to engage in any other
concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activi-
ties, except to the extent permitted by Section
8(a)(3) of the Act.
WE WILL make whole, with interest, all em-
ployees who suffered a loss of earnings be-
cause we unlawfully reduced the number of
hours they were scheduled to work.
WE WILL offer Rosalee Sullivan and Donald
Sproull immediate and full reinstatement to
their former jobs or, if those jobs no longer
exist, to substantially equivalent positions,
without prejudice to their seniority or other
rights and privileges, and WE WILL make them
whole, with interest, for any loss of pay they
may have suffered as a result of our unlawful
discrimination against them.
WE WILL, upon their application, offer im-
mediate and full reinstatement to all employees
who participated in the strike on or after July
31, 1979, and who have not already been rein-
stated, to their former positions or, if those po-
sitions no longer exist, to substantially equiv-
alent positions, without prejudice to their se-
niority or any other rights and privileges, dis-
missing, if necessary, any person hired by us
on or after July 31, 1979. If insufficient jobs
are available for these employees, they shall be
placed on a preferential hiring list, and they
will be offered employment before any other
persons are hired. If we do not reinstate the
striking employees in the manner set forth
above within 5 days from the date reinstate-
ment is requested, backpay, with interest, shall
begin running from the date on which the 5
days expire.
DICK SEIDLER ENTERPRISES, D/B/A
JOE AND DODIE'S TAVERN
DECISION
STATEMENT OF THE CASE
GORDON J. MYATr, Administrative Law Judge: Upon
a charge filed on July 31, 1979,1 by Hotel and Restau-
rant Employees and Bartenders Union, Local No. 49,
AFL-CIO (hereinafter called the Union), against Dick
Seidler Enterprises, d/b/a Joe & Dodie's Tavern (herein-
after called Respondent), the Regional Director for
t Unless otherwise indicated, all dates herein refer to the year 1979.
Region 20 issued a complaint and notice of hearing on
September 14. The complaint alleges that Respondent,
acting through its supervisors and/or agents, engaged in
conduct which violated Section 8(a)(l) of the National
Labor Relations Act, as amended, 29 U.S.C. §151, et seq.
(hereinafter called the Act). The complaint further al-
leges that Respondent unlawfully discharged two em-
ployees, Donald Sproull and Rosalee Sullivan, on July
28 in violation of Section 8(aX3) of the Act, and that as a
result of Respondent's unlawful conduct the employees
ceased work on July 31 and engaged in a strike. Respon-
dent filed an answer admitting certain allegations of the
complaint, denying others, and specifically denying the
commission of any unfair practices.
On June 13, the Union filed a representation petition in
Case 20-RC-14840 and on June 29, the parties entered
into a Stipulation for Certification Upon Consent Elec-
tion. A secret-ballot election was conducted on July 25
and the tally of ballots discloses that of 28 eligible voters,
13 voted in favor of representation by the Union and 12
ballots were cast against union representation. There
were three challenged ballots which were sufficient to
affect the results of the election. On July 30, both Re-
spondent and the Union filed timely objections to the
election. The Regional Director issued her Report on
Objections and Challenged Ballots on September 14. The
Regional Director recommended overruling all of the
objections, sustaining the challenge to one ballot, over-
ruling the challenge to another ballot, and setting the
challenge to the third ballot for hearing jointly with the
unfair labor practice case in Case 20-CA-14760. On Oc-
tober 15, the Board, through its executive secretary,
issued an Order adopting the recommendations of the
Regional Director. The Regional Director thereupon
issued an order consolidating both cases and setting them
down for hearing.
A hearing was held on this consolidated matter on No-
vember 15 and 16 in Sacramento, California. All parties
were represented by counsel and afforded full opportuni-
ty to examine and cross-examine witnesses, and to pre-
sent material and relevant evidence on the issues in con-
troversy. Briefs were submitted by the General Counsel
and Respondent and have been duly considered.
Upon the entire record in this case2 and from my ob-
servation of the witnesses and their demeanor while testi-
fying, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The pleadings admit that Respondent is a California
corporation engaged in the restaurant business. It main-
tains a restaurant in Folsom, California (the only facility
involved herein), where it sells prepared food and bever-
ages and caters to banquets and parties. During 1979, Re-
spondent in the course of its restaurant operations re-
ceived gross revenues in excess of $500,000. During this
same period, Respondent purchased and received goods
which originated outside the State of California valued in
2 The official transcript in this case is replete with errors, which have
been noted and are hereby corrected.
402
JOE & DODIE'S TAVERN
excess of $1,500. Although Respondent denies that it is
an employer engaged in commerce, it is evident from the
above that Respondent meets the jurisdictional standards
of the Board and is an employer within the meaning of
Section 2(2) engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Hotel and Restaurant Employees and Bartenders
Union Local No. 49, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Joe and Dodie's is a restaurant with a bar and a cock-
tail lounge. Until November 1, 1978, it was owned by
Joe Ross and his wife, Dodie. Under the terms of the
purchase agreement with Dick Seidler Enterprises, Ross
took back a 15-year promissory note at 10-percent inter-
est. 3 The agreement also provided, among other things,
that Ross was to receive regular monthly payments from
Respondent and there was an acceleration clause in the
event Respondent became insolvent.
After the sale of the restaurant to Respondent, Ross
remained active in the operation of the business until the
end of December 1978, assisting the new manager, John
LaFountain, through the transition to the new owner-
ship. Ross' two daughters, Linda Fowler and Jodee
Ross, had been waitresses during his ownership and con-
tinued to work in this capacity through the transition
period until the end of December. All of the other em-
ployees who worked for Ross continued in their jobs
under the new ownership.
B. The Organizing Effort Among the Employees
Rosalee Sullivan was a waitress during Ross' owner-
ship. She started at the restaurant in August or Septem-
ber 1978. 4 Sullivan testified that she contacted represen-
tatives from the Union in early June. As a result of this
contact, she held a meeting at her home to introduce the
union officials to some of the employees on June 11II. A
second meeting was held the next day at the home of
Donald Sproull5 and approximately 19 employees signed
authorization cards for the Union. Because she and
Sproull did not want management to discover that the
employees were considering joining the Union, Sullivan
deliberately did not invite any employees who she felt
were close to LaFountain to either of the meetings.
After the authorization cards were signed, the Union
3 Dick Seidler Enterprises also owns several other restaurants in the
Sacramento area. They are known as the "Steak and Ale" restaurants.
4 According to her testimony, Sullivan was considered one of the
better waitresses and a leader among the employees. She had received
written commendations from customers praising her service, and these
were posted in the timeclock area by Ross. When the ownership
changed, Dick Seidler singled her out to assure her that the employees
would retain their jobs under the new ownership. He also had her ac-
company him while he met with the employees to give them the same
assurance.
6 Sproull was Sullivan's fiancee and the bar manager at Joe and
Dodie's.
filed a representation petition with the Board's regional
office on the following day.
Tuesday evenings were normally the busiest nights at
the Respondent's restaurant. It was the custom to have a
"Lobster Special" on this evening each week and nor-
mally over 300 customers would be served. This necessi-
tated having a full crew of employees on duty during
Tuesday evenings. Sullivan testified that after the meet-
ing at her home and the signing of the authorization
cards, she was accosted at work on the evening of June
12 by several employees who complained about the fact
that they had not been invited to the meetings. One of
these employees was Sarah Rohwer, a waitress.
Sullivan testified that Rohwer came to her that even-
ing and stated that she (Sullivan) had no right having a
union meeting at her home without inviting her. Accord-
ing to Sullivan, Rohwer became incensed and called her
"a bitch." Sullivan testified that Rohwer went on to say
that Sullivan was too old to get a job any place and that
was the only reason why she wanted a union. Rohwer,
on the other hand, testified she overheard Sullivan
giving an employee directions to her home and asked
why she was not invited. Rohwer stated Sullivan told
her to mind her own business and accused her of being a
troublemaker. Rohwer testified that she reported this
conversation to LaFountain.
Jim Yates, a part-time busboy and bartender, also had
a conversation that evening with Sullivan about the
union meeting. Sullivan testified that Yates asked why he
had not been invited to attend the meeting. She replied
that he would have revealed all that happened at the
meeting to LaFountain. According to Sullivan, Yates
became angry and threatened to have all of the tax re-
turns of the employees attending the meeting audited,
since he worked for the State Franchise Tax Board.
Further dissension among the employees occurred as a
result of management hiring a group of new employees
shortly after the filing of the representation petition. Ann
Stark, a waitress who had been employed at the restau-
rant for 9 years, testified that after the petition was filed,
LaFountain put on six to eight new employees in addi-
tion to the existing staff. According to Stark, there had
not been any apparent increase in the volume of business
at the restaurant nor were any of the regular employees
away on vacation at the time of the new hires.6 She tes-
tified that never during her tenure at the restaurant had
so many new employees been hired within such a short
time period. Stark stated this resulted in a surplus of
waitresses on the dining room floor. She testified that
she normally worked four nights a week from 5 p.m.
until closing. After the new employees were hired, she
frequently left early because there were more waitresses
than needed to serve the customers. This was especially
true on Wednesday evenings, where in the past she was
normally the only one on duty. According to her unre-
futed testimony additional waitresses were assigned to
the floor on that night and she had nothing to do but
stand around.
6 Although it is not clear in the record, apparently some of the new
hires had previously worked for Seidler in the Steak and Ale restaurants.
403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
One of the employees put on by LaFountain in mid-
June was Linda Fowler, daughter of the former owner.
While from her direct testimony it would appear that
Fowler was merely rehired by LaFountain because there
was a business need, it became clear on cross-examina-
tion that she returned to work as a direct result of the
dissension occurring among the employees over the
union activity. On cross-examination Fowler admitted,
after first denying, that LaFountain told her the union
organizers were giving another waitress, Carol Carter, a
hard time. Since Fowler and Carter were friends, he
asked Fowler to return to work to give Carter support
against the union adherents.
C. Changes in Various Rules Relating to the
Employees
The testimony indicates that it had been the custom
for the waitresses to pool their tips each evening. They
would remain after closing to count the money and
divide it among themselves and the busboys. Shirley
Fritz testified that sometime in mid-June LaFountain
came up to her and claimed he was fearful that Sullivan
was going to "cause bodily harm " to Carter because of
the dissension over the Union. Fritz stated this was not
so and since she worked with Sullivan and Carter, she
would approach them together regarding LaFountain's
statement. She testified that LaFountain became angry
and said, "You girls will from now on not even be able
to talk with each other any more when you come to
work," and that "one girl will have to stay after work
counting the tips and you will pick up your tips the next
day." Fritz stated she reported this to Sullivan and Stark
and possibly some of the other waitresses. They decided
to discontinue the practice of pooling their tips and each
would keep the tips she received.
LaFountain, however, gave a different version of the
circumstances surrounding the pooling of the tips. Ac-
cording to him, some of the waitresses pooled their tips
and others did not. He stated this caused further dissen-
sion among the employees. He further stated that he may
have been in the office discussing the matter with Ed
Vota, the assistant manager, when Fritz walked in. 7 La-
Fountain testified that he and Vota were discussing the
"possibility" of what could be done about the dissension
over the tips and that Fritz may have overheard them.
According to him, no rule was ever instituted by man-
agement concerning the employees' tips.
Another custom followed by the employees involved
the eating of meals at the restaurant. Ron Barnes, who
started as a dishwasher under the prior management,
worked as a cook and a busboy for Respondent. 8 He tes-
tified that when Respondent took over the ownership of
the restaurant a policy was posted permitting employees
to eat from a limited menu. They were not to come into
the kitchen to cook food for themselves but were to
have it prepared by the cooks. Also, whenever an em-
ployee had a meal, he or she was required to write up a
7 Fritz worked as a waitress four nights a week and spent 2 days a
week working on Respondent's books in the office.
a Barnes worked these positions at different times during the week.
When he functioned as a cook, he earned $4.50 an a hour and when he
worked as a busboy, he received $2.90 per hour.
ticket and present it to the restaurant cashier. The posted
rule also provided that no employee was to be served
after the kitchen had closed. Barnes stated that in spite of
this, it was customary for employees to come into the
kitchen after it closed and prepare food; especially after
working late on Tuesday nights. On many occasions, em-
ployees would prepare, or have the cooks prepare, some-
thing during working hours and place the food in the
oven warmers, so that they could eat or take it home
after work in "to go" cartons.
It was also the custom for the employees to remain
after work and relax by having a drink or eating after a
busy night. Since many of the busboys and kitchen help
were minors, they were not permitted in the bar area but
went into the cardroom and played pool. Although La-
Fountain would not permit them to sit at the bar after
work, the other employees were granted permission to
sit at the tables in the lounge area after work. The testi-
mony indicates that LaFountain and Jerry Webb,9 his
roommate, would often join the employees during this
relaxing time after work.
In late June or early July (the record is unclear as to
the exact date), the employees were gathered in the
lounge and poolroom area relaxing after a busy Tuesday
evening. LaFountain and Webb came into the restaurant
and Webb proceeded to rack up all of the balls on the
pool table. Webb told the employees they could no
longer play pool and that from now on, they had to
leave 15 minutes after their shift was over. LaFountain
noticed that some of the boys had food prepared to take
with them and ordered them to throw the food away.
He also instructed Sproull to tell the employees in the
lounge that they could no longer remain in that area and
had to leave the premises 15 minutes after their shifts
were completed. Sullivan, who was part of the group,
complained to LaFountain and wanted to know why the
sudden change in the rules by management. She indicat-
ed that the employees previously were permitted to relax
in this fashion after work. Sullivan received no response
from LaFountain.
The following day, LaFountain posted a rule stating
that the employees were to leave the premises at the
conclusion of their shifts. Barnes testified that LaFoun-
tain came to him several days later and explained that
the main purpose of providing a free meal for the em-
ployees was for their convenience. He stated that when
they came to work they could eat before they started
their shifts or if the business slowed down during the
evening, they could punch out and Barnes could fix
them something. He also stated, according to Barnes,
that if Barnes agreed, the employees could prepare their
own food. LaFountain testified that he changed the rules
regarding allowing the employees to remain on the
premises after work and to eat after completion of their
shifts because, "with the amount of friction there was be-
tween the employees it was just easier to have everyone
go home, when work is done, go home."
9 Webb's exact role at Respondent's establishment was never defined in
the record. From the testimony it is evident that he assisted LaFountain,
possessed keys to the office, and assumed some managerial responsibilities
over the employees with LaFountain's approval.
404
JOE & )ODIE'S l.tAVE[ RN
The final change in Respondent's rules affecting the
employees involved their dress code. This change was
not officially implemented until July 27; 2 days after the
representation election had been held. Ron Barnes testi-
fied that when he worked as a busboy, he normally wore
blue jeans and a red T-shirt. He stated that several weeks
after the petition was filed, LaFountain directed him on
two occasions to get a pair of dark pants. Barnes bought
the pants and gave the receipt for the purchase to
Sproull, who was going to attempt to get reimbursement
for him from the manager. LaFountain did not reimburse
Barnes, and the employee took the pants back.
On July 27, LaFountain posted a notice to all employ-
ees regarding their uniforms in the future. (G.C. Exh. 7.)
In the notice he instructed all of the employees to turn in
their Joe and Dodie's uniforms by July 31. The notice
also stated that in the future the waiters and waitresses
were to wear solid red or white tops and black bottoms.
Busboys were to wear white or red shirts and dark pants.
Blue jeans were forbidden. The bartenders were to wear
the same color outfit as prescribed for the busboys.
D. The Employee Dissension Over the Union
As noted, considerable dissension developed among
some of the employees over the prospect of representa-
tion by the Union. The testimony indicates that Sullivan
was the focal point of most of these disputes. Fowler tes-
tified that several weeks prior to the representation elec-
tion on July 25, she observed Sullivan talking to one of
the employees about the Union while on duty at the res-
taurant. Fowler criticized Sullivan for doing this during
working hours She stated that Sullivan became angry
and told her to "mind your own fucking business." Ac-
cording to Fowler, Sullivan said if she (Fowler) were
not pregnant, she would get even with her at that time
but since she was, Sullivan said she would get even with
her at a later date. Fowler stated she reported this inci-
dent to LaFountain.
Sullivan admitted having a confrontation with Fowler
but placed it as the Tuesday before the election. Accord-
ing to Sullivan, Fowler wanted to know if she had
punched out before discussing union matters with the co-
worker. Sullivan denied swearing at Fowler, but ad-
mitted telling her that even if she was pregnant, they
were going to have it out after the election. She stated
that Fowler had been having difficulty during her preg-
nancy and all of the waitresses were solicitous of her
condition. Sullivan denied that she threatened Fowler
with physical harm but, rather, meant they were going
to have to deal with their differences over the Union
after the election.
Fowler testified that when she returned as a waitress
in June, her relationship with Sullivan deteriorated. Ac-
cording to Fowler, Sullivan became "hateful" and did
things to deliberately antagonize her. She stated that Sul-
livan would whisper to other employees about her and,
on one occasion, deliberately bumped into her thereby
causing her to drop some plates that she was carrying.
Fowler further testified that Sullivan did not abide by
the rules set by management and smoked at the hostess'
desk contrary to the house rules. She also stated that she
observed an incident in which Sullivan threatened La-
Fountain in front of customers. According to Fowler,
sometime during the first part of July, Sullivan backed
LaFountain into a corner while customers were present
and put her finger in his face saying, "I'll get you if it is
the last thing I do." Fowler's antagonism toward Sulli-
van and what she termed as Sullivan's hateful conduct
carried over in her relationship with Sproull. Ron Barnes
testified that a week after Fowler returned as a waitress,
she told him that if she ever saw Sullivan or Sproull
walking on the street, she would run them down.
When the election was held, Fowler attempted to
vote, but was not permitted to do so because she was not
on the eligibility list. Sullivan was the observer on behalf
of the Union during the election. Fowler admitted telling
Sullivan at that time to "stick it in your ear." She also
admitted saying other things to Sullivan as she walked
away from the polling area because she (Sullivan) was a
"spiteful woman."
LaFountain testified that Yates informed him that
some of the employees had threatened to contact his reg-
ular employer at the Franchise Tax Board over his state-
ment to Sullivan that he would have the State tax re-
turns of the employees audited. LaFountain stated that
Yates claimed that Sullivan and Sproull made specific
threats indicating they would contact Yates' superior at
the Franchise Tax Board.
E. Conversations With Employees Regarding the
Union by Present Management and hy the Former
Ow4ner
Sullivan and Stark testified that prior to the election,
Dick Seidler met with a group of employees at the res-
taurant. 1 Seidler urged the employees to remain calm
and said that he did not want any trouble. He stated that
he could not understand why the employees wanted to
join a union because they could always come to him
(about problems). He then turned to Sullivan and said
that she was aware of this. Sullivan replied that if she
went to management with problems, she would be pun-
ished. Seidler then retorted, "b- sh-."
Doug Gillott, who worked one night a week as a
waiter at Joe and Dodie's and four nights a week at one
of Seidler's Steak-and-Ale restaurants, testified that he
visited LaFountain's home at the invitation of Webb. He
stated that Yates was also present. According to Gillott,
LaFountain said he believed Sullivan was leading the
movement for the Union among the employees. He also
testified that LaFountain said, "he couldn't believe that
she [Sullivan] could turn people against him so fast."
Ron Barnes testified that Joe Ross and his wife were
in the restaurant sometime after Fowler was rehired by
LaFountain. Fowler approached him and asked if he
would be willing to talk to Ross. Barnes arranged to
come to Ross's home the following morning with an-
other coworker, Douglas Starms. When the two employ-
ees met with Ross, he asked what they thought the
Union would do for them? Ross told the employees the
Union "would promise the world" in order to get their
"' Suli;an letied thai the meeting look place on the uesday before
Ihe elecinm Stark could onl 5 recall that it was after the union cards
were signed
405
DECISIONS OF NATIONAI. LABOR RELATI()ONS BOARD
votes, but would back out after a contract was signed.
Starms testified that Ross said the Union could not pro-
vide security for the employees and would not back
them up in dealing with management. Both employees
testified that Ross cited several examples of people who
he alleged were hurt by belonging to a Union. He stated
that a friend of his who belonged to a Union lost money
when the Union went on strike. He also stated that a
former waitress he knew had helped to organize a union
where she worked. According to Ross, the day after the
election she was fired and nothing was done (by the
Union) to assist her. Ross concluded the conversation by
telling the employees that any decision they made re-
garding the Union was up to them. Barnes testified that
he became concerned over the matters discussed by Ross
and repeated the conversation to other employees at a
union meeting. He said he asked at the meeting if he
would lose money should the Union become the repre-
sentative of the employees.
F. Respondent's Letter to the Employees
The day before the representation election on July 25,
the Respondent sent a letter to the employees entitled
"Rumor vs. Fact." (G.C. Exh. 6.) This letter purported
to dispel any misconceptions the employees had about
the effects of being represented by a union. One portion
of this letter stated as follows:
Rumor Fact
You can still retain
your independence if
the Union represents
you. YOU ABSOLUTELY
CANNOT. In effect you
will have hired the Union to
do your talking for you in
your dealings with this
Company. The Company
would be legally obligated
to deal solely through this
Union regarding all aspects
of your terms of
employment with this
Company. (Do you really
think the Union has your
best interests at heart, or are
they merely looking at dues
and union strength through
additional membership?)
G. The Changes in the Scheduled Work Hours
During the last week in July, LaFountain posted a
change in the employees' work schedule. The change
was to become effective on July 30. (See G.C. Exh. 4.)
Under the new work schedule, the hours of a number of
employees were reduced. LaFountain admitted he did
this in order to reduce the amount of time employees
would be at the restaurant and, thereby, cut down on the
time available for dissension between the prounion and
nonunion employees. A copy of the prior work schedule
was introduced into evidence (G.C. Exh. 3), and a com-
parison with the new schedule discloses that some of the
employees who depended on the receipt of tips had their
hours reduced by at least an hour and a half per shift. In
some instances, they were scheduled to report to work
before the dinner hour started and leave before it con-
cluded. For example, Stark had been coming in at 5 p.m.
and remaining until 11 p.m. (closing), but under the new
schedule she was to work from 6:30 to 11 p.m. on Tues-
day, 4:30 to 9 p.m. on Wednesday, 5 to 9 p.m. on Friday,
and 6 to 10 p.m. on Saturday. Sullivan, who regularly
worked from 5 until 11 p.m., was scheduled to work
from 6 until 10 p.m. Ron Barnes had been working as a
cook from 4:30 until 11 p.m. for three nights and as a
busboy from 5 until 11 p.m. one night a week. His sched-
ule was changed so that he was to work as a cook only
two nights a week and as a busboy one night; all at re-
duced hours except on Tuesdays. Randy Barnes worked
as a dishwasher one night a week and as a busboy for
three nights. When he worked as a busboy his hours
were from 5 to 11 p.m. Under the new arrangement, he
lost one night and worked reduced hours for the remain-
ing three. Similarly, Fritz had been working four nights
a week from 5 until II p.m. She continued to be sched-
uled for four nights under the new arrangement, but her
hours were reduced for each night.
H. The Termination of Sullivan and Sproull
The discord between Fowler and Sullivan continued
after the election and resulted in a violent confrontation
on July 28. As noted, LaFountain posted a uniform re-
quirement on July 27. On the evening of July 28, Sulli-
van came to work wearing a black top as well as a black
bottom. This was contrary to the dress code posted by
LaFountain. She also brought a red top to work, which
she kept in her bag. Sullivan testified she wore this par-
ticular outfit because she wanted to force management to
declare that the dress code was in fact a requirement for
a uniform and, under state law, pay the employees for
them.
Sullivan stated she reported to LaFountain that even-
ing to find out where she was to be assigned. She was
told that she was to work in the nonsmoking room. She
went to her work station and found that a table was
missing. She and LaFountain then went into the banquet
room to secure one. While they were setting up, accord-
ing to Sullivan, several of the kitchen employees came in
and asked her about the new working schedules that had
been posted by LaFountain. These schedules were to
become effective at the end of July. Sullivan stated La-
Fountain asked her to go outside with him so they could
talk. According to Sullivan, LaFountain said he was
aware of an incident that occurred the night before be-
tween Sullivan and Fowler and that "he was tired of the
big mouth [Fowler]" and would talk to her. Sullivan
mentioned the matter of the schedule changes and urged
that the kitchen help be allowed to work until closing,
rather than until the set time of 11 p.m. She stated the
employees would be unable to complete their duties and
the work would have to be finished the following day.
Sullivan testified that LaFountain said it was against the
law to schedule the employees to work until closing,
406
JOE & DODIE
and, if necessary, he would have to hire additional
people to make sure that the kitchen work was finished
by 11 p.m.
LaFountain gave a different version of his discussion
with Sullivan concerning the change in the employees'
work schedule. He stated that Sullivan came to him the
last of July and complained about the new schedule. He
also stated that Sullivan threatened to "pull all of her
people" off at the end of their shifts, even though they
had not completed their duties, if LaFountain did not
change the hours to closing rather than the set time indi-
cated by the schedule. LaFountain said he considered
this to be a "power play" on the part of Sullivan.
Sullivan testified that after her conversation with La-
Fountain she returned to her work station. Fowler was
working in the banquet room at the time handling a wed-
ding party. According to Sullivan, Fowler came out of
the banquet room and called her a "bitch." She stated
that Fowler told her to stay out of her way. Sullivan
went to LaFountain and complained about Fowler's be-
havior. She testified that LaFountain said he would
handle it, but he did not leave his office. Shortly there-
after, Fowler again confronted Sullivan and this time
called her a "fucking bitch." Sullivan insisted that
Fowler accompany her to LaFountain's office where
they both complained in an agitated and emotional
manner about each other to LaFountain. Sullivan stated
that LaFountain said he would stop Fowler from bother-
ing her, but did nothing. As they left the office and ap-
proached the bar area, Fowler began to scream and
curse again at Sullivan. She struck Sullivan and dug her
fingernails into Sullivan's arm. Yates, who was nearby,
separated the two and attempted to calm Fowler.
Randy Barnes, brother of Ron Barnes, stated that he
observed the incident. According to him, when Sullivan
and Fowler left LaFountain's office, Yates was attempt-
ing to restrain Fowler. She was screaming that she was
going to "kick Sullivan's ass." Fowler broke away and
attacked Sullivan. Yates then pulled her away and
Sproull came from behind the bar. Barnes testified that
Fowler then turned to Sproull and called him a "back-
stabbing son of a bitch." She said that Sproull was the
one that "messed up the business" and "was cheating her
father."
After Fowler and Sullivan were separated, Sproull
called the police. When they arrived they questioned
Sullivan alone outside the restaurant and Fowler in the
presence of LaFountain. No charges were filed by either
employee. When Sullivan returned to the restaurant after
speaking with the police, LaFountain then accused her
of being out of uniform.
After the police left, Sproull attempted to contact
Seidler on the telephone. He was not available and
Sproull left a message with his answering service re-
questing that he call Sullivan at the restaurant. I" Seidler
called at approximately 11:30 p.m. and spoke with Sulli-
van. The testimony indicates that she repeated portions
of Seidler's end of the conversation out loud so that
iI Sullivan testified that she placed the call to Seidler and left the mes
sage with his answering service. In view of her emotional confrontation
with Fowler, I find it more probable that Sproull made this telephone
call
'S TAVERN 407
Sproull and others nearby could hear. According to Sul-
livan, after she reported her version of the incident,
Seidler threatened to come down and fire all of the em-
ployees. She then suggested that he consider issuing sus-
pension for several days to any employees involved in
creating trouble at the restaurant. She stated that Seidler
then asked if she and Sproull would meet with him the
next day at the restaurant. He indicated it would be
Sunday and the restaurant would be quiet. She testified
that Seidler said there was no reason to wait to have the
"Union thing settled," and they could sit down and start
negotiating immediately. Seidler also said, according to
Sullivan, that she should remember that LaFountain was
the manager and the four of them could sit down and
"try to straighten this whole thing out." It was arranged
that Sproull and Sullivan would meet with Seidler and
LaFountain the following day at 4 p.m.
Sproull, who was listening to Sullivan repeat Seidler's
statements over the telephone, testified that he under-
stood Seidler wanted to meet with Sullivan and him the
next day to "straighten out all of this mess." Sproull also
testified that from what Sullivan was repeating over the
telephone, Seidler indicated that, "the Union seemed to
be in because we had more votes and [he] wanted to
come down and get all of the baloney over and start ne-
gotiations with them."
Sullivan and Sproull went to the restaurant at the ap-
pointed time the following day. Both testified that
Seidler took Sproull aside into another room to talk sep-
arately with him. According to Sproull, Seidler wanted
to know why Sproull wanted to "work in a place like
this and have to be a protector of all union people."
Sproull replied that LaFountain refused to do anything
about the dissension which was going on among the em-
ployees. Seidler then told Sproull that LaFountain and
the assistant manager wanted him fired because they
were afraid of him. 2 Seidler offered Sproull severance
pay and a job at any one of his Steak and Ale restau-
rants. Sproull refused and asked Seidler to protect Sulli-
van. Seidler then stated that she was also fired. Sproull
protested that it was unfair to fire Sullivan when she was
the victim of an attack by Fowler. According to Sproull,
Seidler then stated that no decision had been made re-
garding Fowler.' 3 After talking with Sproull, Seidler
brought Sullivan into the room and they were joined by
LaFountain. Seidler told Sullivan that she was fired. La-
L2 This reference to fear of Sproull apparently related to an incident
that occurred prior to the union activity. Sproull and Sullivan had dinner
at the restaurant ol Mother's Day and during this time Webb apparently
joined thmn Subsequentl,. a dispute arose over whether Sproull and Sul-
livan's drinks had been put on Webb's tab After the dispute. Sproull was
informed by Vota, the assistant manager, that LaFountain had compiled a
list of employees who were to be fired and that Sullivan's name was on
the list. LtaFountain testified that Sproull questioned him about the list
and he assured Sproull it had nothing to do with terminating employees
He stated that Sproull refused to believe him and called him a liar Vota
testified that after the dispute on Mother's Day, Sproull told him that he
would "go all out against LaFountain if he fired Sullivan, and he didn't
care if he was going to jail or not." Vota stated he became concerned
and reported the conversation to LaFountain
X:- This account of the conversation between Seidler and Sproull is
hbased on the unrefuled testimony of Sproull Although Seidler testified at
lhe hearing, he offered no details on his conversation with Sproull
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
Fountain stated she was being fired for insubordination
and "a whole bunch of other things."
Seidler testified concerning the firing of Sproull and
Sullivan. He stated that Sullivan requested a meeting
with him after he returned her call the evening before.
He agreed to meet with her the following day at the res-
taurant. According to Seidler, he met with LaFountain
at the restaurant and received a report on the incident
between Fowler and Sullivan. Seidler stated LaFountain
told him he had made a decision to fire both Sproull and
Sullivan. LaFountain said it was the first occasion that
Fowler had been involved in an incident at the restau-
rant, but that it was the fifth or sixth time that Sullivan
had a confrontation with employees. LaFountain testified
there were many employee complaints against Sullivan
and none against Fowler. He also stated that he decided
to fire Sproull because he always sided with Sullivan
when she became involved in these disputes.
The following day a group of employees met at
Sproull's home to discuss the discharges. As a result of
this meeting, the employees decided to protest the firing
of Sullivan and Sproull and all of the other events that
had occurred at the restaurant since the union organizing
campaign began. The employees went on strike as of
July 31.
I. The Status of Donald Sproull
There is considerable controversy in this case as to
whether Sproull was an employee or whether he was a
supervisor within the meaning of Section 2(11) of the
Act. 14 This is also the question presented in considering
the challenge to Sproull's ballot in the representation
case.
LaFountain testified that Sproull was the bar manager.
As such, he was a salaried employee receiving $1,075 a
month and was not required to punch a timeclock. In
contrast, the other bartenders were paid at the rate of
$3.75 per hour and required to punch a timeclock. In ad-
dition to his salary, Sproull received a Christmas bonus
in 1978 from Respondent. The only other persons receiv-
ing such a bonus were LaFountain and Vota.
LaFountain also testified that Sproull made effective
recommendations regarding hiring and firing employees
in the bar and cocktail lounge area. He stated that while
it was his normal practice to first interview applicants
for jobs in the bar or lounge, he did so because the appli-
cants usually showed up during the day when Sproull
was not on duty. However, according to LaFountain, he
would refer them to Sproull for a second interview and a
recommendation. He stated that this occurred in the case
of three bar waitresses (Gerber, Jacobson, and Bennett)
and one bartender (McLaughlin); all of whom were
hired on Sproull's recommendation. On cross-examina-
tion LaFountain admitted, however, that he hired two
1 Sec. 2(1 ) provides:
The term "supervisor" means any individual having authority, in the
interest of the employer, to hire, transfer, suspend, lay off, recall.
promote, discharge, assign, reward, or discipline other employees, or
responsiblity to direct them, or to adjust their grievances. or cflec-
tively to recommend such action, if in the connection with the forc-
going the exercise of such authority is not of a merely routine or
clerical nature, but requires the use of independent judgment.
employees to work in the bar area without consulting
Sproull. One was a female, who, according to the testi-
mony, was a personal friend of Seidler, and the other
was a male, Dennis Rhinehart. LaFountain also stated
that two employees (Ray Winters and Jim Yates) wanted
to work extra hours and he consulted with Sproull about
breaking them in as bartenders. According to LaFoun-
tain, he told Sproull that if he thought they could do the
work, he (LaFountain) would place them in the bar, if
not, he would hire additional bartenders from the out-
side. t 5
According to LaFountain, not only did Sproull make
effective recommendations on hiring employees, but he
was also responsible for terminating or threatening to
terminate several employees for unsatisfactory work per-
formance. LaFountain testified that Sproull thought
McLaughlin was pocketing some of the cash taken at the
bar. He stated that Sproull initiated an investigation of
McLaughlin by coming to him with the problem. La-
Fountain suggested they test McLaughlin's honesty by
having a friend of Sproull purchase drinks with money
provided by management while McLaughlin was on
duty and observe how he rang up the cash. According to
LaFountain, this was done, and on the basis of what was
reported by Sproull's friend, McLaughlin was called into
his office and questioned by him and Sproull. LaFoun-
tain testified that McLaughlin was then fired and he be-
lieved that this was done by Sproull, although he was
not certain on this point.
He also stated that Sproull wanted to fire Rhinehart
and made this recommendation to him. LaFountain said
that when he did not follow up on Sproull's recommen-
dation, Sproull went directly to Seidler and insisted that
Rhinehart be terminated and this was done.' 6 Regarding
the discharge of Rhinehart, Seidler testified that Sproull
called him and recommended that Rhinehart be fired be-
cause he was a homosexual and not a good bartender.
Seidler recalled that Sproull said homosexual friends of
Rhinehart were hanging around the bar and giving the
place a bad name. Seidler stated he then called LaFoun-
tain about the matter and Rhinehart was terminated sev-
eral days later.
In addition to causing the discharge of McLaughlin
and Rhinehart, LaFountain said that Sproull wanted to
terminate one of the bar waitresses. According to La-
Fountain, Sproull wanted to fire Gerber because she was
not working up to her potential. LaFountain told Sproull
to prepare a performance evaluation report on the em-
ployee and discuss her deficiencies with her in order to
allow her time to improve her job performance. He
stated that Sproull did so, and several weeks later report-
ed that Gerber's problems had been worked out.
LaFountain also testified that Sproull had authority to
purchase glassware for the bar. He stated that Sproull
would show him samples of his selection and make rec-
i' Winters testified that l.aFountain nmercli instructed Sproull to break
him ad Yates in as prt-time bartenders
"' LaFountain testified that Sproull pressed for more managerial au-
thoity after this icident with Rhinehart, as he felt he did not have as
much ciontrol of the bar employees as he needed According to LaFoun-
tain, this caused a conflict hetween Sproull and Vota
408
JOE & DODIE'S TIAVERN
ommendations as to which items should be purchased.
Once LaFountain made a decision, Sproull would then
make the purchase. He further testified that from time to
time he and Sproull would visit other bars in the area to
observe how they were run and to check on the cost of
their drinks. This was to allow Respondent to remain
competitive. Finally, LaFountain stated that Sproull had
keys to the premises and the alarm system as well as to
the manager's office. He also had the combination to
the safe located in LaFountain's office.
The testimony of Sproull and several of the employee
witnesses presents a different picture of the extent of his
authority over the bar area. Sproull acknowledged that
he was given the title bar manager by Respondent when
the change in ownership occurred in November 1978.
He had worked for Joe and Dodie's for approximately 6-
1/2 years. Under Ross' ownership, Sproull was made
floor manager in 1974. Approximately 7 months later he
asked to return to his former position of bartender and
Ross agreed to this. However, his rate of pay as floor
manager was unchanged when he returned as bartender.
When Respondent took over the business, Sproull con-
tinued to receive the same salary he had been getting
from Ross; i.e., $1,075 a month whether he missed a shift
or not. Sproull testified that he averaged 9 hours a day
behind the bar when he worked. His hours were from 5
p.m. until 2 a.m. He worked alone on Wednesdays and
Thursdays and on Tuesdays, Fridays, and Saturdays he
was assisted by another bartender.
Sproull acknowledged that when Respondent took
over the business, LaFountain established a policy
whereby he would first interview applicants for positions
of bartender or cocktail waitresses and then Sproull
would subsequently interview the individuals. He stated,
however, that the decision to hire was made solely by
LaFountain. He admitted that he interviewed McLaugh-
lin prior to his being hired as a bartender and Gerber
and Bennett prior to their being hired as cocktail wait-
resses. He stated that in spite of the policy, LaFountain
hired between eight and nine other bartenders and cock-
tail waitresses without Sproull having interviewed them.
Some of them were individuals who were transferred
from the dining room area and Sproull stated he was not
consulted on the transfers. He specifically mentioned that
he was directed by LaFountain to break in Winters and
Yates as part-time bartenders. Sproull also stated that on
one occasion he recommended his son and a friend of his
son to LaFountain for employment. However, LaFoun-
tain declined to hire them stating that the kitchen em-
ployees smoked pot and drank liquor and that this was
not an environment for Sproull's son to work in.
Concerning the discharge of McLaughlin, Sproull ad-
mitted that he thought McLaughlin was cheating on the
cash taken over the bar. He informed LaFountain of his
belief and stated that LaFountain asked him to pay a
friend money to order drinks from McLaughlin. He testi-
fied when he reported the results to LaFountain, the
manager called McLaughlin into his office and dis-
I7 LaFountain said that the assistant manager did not have a ke, to the
alarm system since he neither opened nor closed the business each day
However, the janitor had a full set of keys to enter the premises, to turn
off the alarm system, and for the offices
charged him. Sproull stated that he went into the office
after the discharge had taken place and McLaughlin ac-
cused him of being responsible for it.
Sproull also testified that he had attempted to fire a
cocktail waitress, Jenny Jacobson, by complaining to La-
Fountain regarding her work. Sproull felt that she was
talking to too many friends in the bar and neglecting the
customers. According to Sproull, LaFountain refused to
terminate the employee, and stated that she was cute and
neatly dressed and presented a good image for the busi-
ness.
Sproull admitted that he attempted to get LaFountain
to terminate Rhinehart. He stated Rhinehart was ignor-
ing customers and not performing his duty behind the
bar. Sproull complained to LaFountain who promised to
speak to Rhinehart. When LaFountain failed to do so,
Sproull arranged to meet with Seidler at one of his Steak
and Ale restaurants. He told Seidler that unless he was
given authority to hire and fire bar personnel, he was
going to quit. He cited the problem with Rhinehart.
Seidler called LaFountain and, later that day, LaFoun-
tain and Sproull discussed the matter. Sproull com-
plained about his lack of authority over the bar employ-
ees and the failure of LaFountain to back up his deci-
sions. LaFountain then told Sproull he would have au-
thority over the bar personnel but stated that all hiring
and firing was subject to his final approval.
As a result of this, Sproull called a meeting of all the
bar personnel to work out a schedule of hours and to
reprimand Rhinehart. He stated that during the meeting
LaFountain stepped in and defended Rhinehart. He
placed the blame for Rhinehart's failure to handle his bar
duties properly on the fact that he had to spend too
much time ringing up wine tickets from the dining room.
The meeting did not result in a reprimand being given to
Rhinehart and he continued to work at the bar. Sproull
stated he had nothing to do with the fact that Rhinehart
was ultimately discharged. According to his testimony,
Rhinehart contracted infectious hepatitis. Although still
working at the restaurant, he was placed in the dining
room area as a waiter. He appeared to be ill on one oc-
casion and Gerber, a bar waitress, called Seidler on the
telephone and insisted that he discharge Rhinehart. Fol-
lowing Gerber's phone call, Rhinehart was terminated.
Sproull stated that when the bar employees wanted to
have time off they would not consult with him but,
rather, would leave a note for LaFountain. Sproull testi-
fied that when this occurred, he would have to resche-
dule other employees to fill in. He also testified that al-
though LaFountain gave him authority to compel the
bar waitresses to stay overtime when business warranted
it, this authority was also vested in all of the other bar-
tenders.' 8
Sproull acknowledged that he had accompanied La-
Fountain on a survey of bars in the area. He stated they
', Sproull's lestimony in this regard was corroborated by Jacobson
She stated that whenever any of the bar waitresses wanted to lease early,
they would ask whichever bartender was on duty and would always be
told to take their request to LaFountain. Jacobson also testified that on
several occasions Gerber would leave without asking permission from
a:nyone
409
DECISIONS OF NATIONAL LABO()R REI.ATIO()NS BOARD
did so to establish the cost of drinks in order to set prices
for the Respondent which would be competitive. He also
acknowledged that he purchased the bar glasses and
mugs. He stated, however, that he always did so on La-
Fountain's instructions. Sproull did not order any of the
liquor for the bar, although he generally kept an inven-
tory of the amount of beer that was in the cooler. When
stocks of liquor or beer needed to be replenished, Sproull
would always leave a note for Vota who handled the
matter with the suppliers.
On one occasion Sproull was called at home while off
duty to come and to close the bar. This was caused by
the fact that LaFountain had traveled to Reno and was
snowbound. The bartender on duty called Sproull to
come in and close the registers and deposit the cash re-
ceipts in the office safe.
Sproull could not recommend raises nor could he set
the salaries for any of the employees who were hired. He
kept keys to LaFountain's office and had the combina-
tion to the safe in order to deposit the night's receipts.
However, Fritz, who worked as a waitress and a part-
time bookkeeper, also had keys to the office and knew
the combination to the safe. In addition, Webb, Vota,
and the janitor had keys to the building and to the of-
fices.
Sproull testified that when the Respondent took over
the operation at Joe & Dodie's, LaFountain had him
make out a list of the duties for all of the employees in
the bar area. LaFountain also had the kitchen manager
make up a list of duties for the kitchen personnel and
Stark, the senior waitress, make up a similar list for the
dining room personnel.
Regarding the making out of an efficiency report on
Gerber, Sproull stated that he did so on the instructions
of LaFountain. He also testified that LaFountain directed
him to make out the report because LaFountain wanted
to fire Gerber. Sproull testified that he told Gerber to
straighten out her personal problems within 2 weeks and
she did. He stated he then informed LaFountain that
Gerber was all right and had worked out the problems
which were interfering with her job.
Concluding Findings
The unrefuted testimony of all of the witnesses estab-
lishes that Sullivan was the leading activist in the effort
to secure union representation for Respondent's employ-
ees and that Sproull was a strong supporter of her activi-
ties in this effort. Not only was this apparent to the em-
ployees, it was known by the management officials as
well. Thus, LaFountain acknowledged in response to
questions by the General Counsel, after first attempting
to deny any such knowledge, that he was aware of the
involvement of both Sullivan and Spreull on behalf of
the Union within a week after the representation petition
was filed. It is also abundantly clear from the testimony
that management then proceeded to take steps to coun-
teract the thrust of the union activity among the employ-
ees.
First, LaFountain hired a group of new employees
several weeks after the filing of the petition. The testimo-
ny of Stark and Sullivan indicates that Respondent had
not experienced any sharp increase in business nor were
any of the regular employees away on vacation. Indeed,
Stark's unrefuted testimony discloses that she would
leave on many occasions after the new employees were
hired because there were more employees on the dining
room floor than the volume of business warranted. Since
Respondent offered no evidence to refute these assertions
by Stark and Sullivan, their testimony gives rise to a
strong inference that the new employees were hired
during the latter part of June to offset the influence and
dilute the numerical strength of the union supporters at
the restaurant. Any doubt as to management's purpose
was dispelled by the testimony of Fowler. She admitted,
albeit reluctantly, that LaFountain asked her to return to
support her friend Carter, who LaFountain stated was
being given a bad time by the union supporters. In the
absence of any testimony to the contrary, I also find that
the other new employees were hired at this time by man-
agement to increase the ranks of the nonunion faction of
the employees.
The record discloses that Respondent also sought by
other means to suppress the union activity among the
employees. On June 26, L.aFountain and Webb precipi-
tously ordered the employees to leave the premises after
work and changed a longstanding policy allowing em-
ployees to take food home after the completion of their
shift. Heretofore it had been the custom for the employ-
ees to remain after a busy evening, notably on Tuesday
nights, to relax and unwind; the minors by playing pool
in the game room and the other employees by eating or
having a drink in the lounge. The testimony also indi-
cates LaFountain and Webb frequently joined the em-
ployees during this time after work. The abrupt manner
in which LaFountain and Webb terminated this practice
on June 26 by scooping up the balls from the pool table,
taking away the food from the employees, and ordering
the employees to leave the premises, provides strong
support for the conclusion that management took this
action in retaliation for the employees having engaged in
activities on behalf of the Union. Indeed, LaFountain ad-
mitted that he posted a notice the following day requir-
ing employees to leave 15 minutes after completion of
their shifts because he wanted to minimize the amount of
time employees would be on the premises after work to
engage in dissension over the Union. Although LaFoun-
tain stated he changed the policy regarding the eating of
or taking food home after work because the employees
were preparing food after the kitchen closed, it is appar-
ent that until the organizing effort he condoned the prac-
tice of allowing employees to eat or carry food home
after their work was concluded.
Concededly, LaFountain had a legitimate interest in
making certain the employees ate only the food provided
on the limited menu and did not take the food home for
consumption by others. But the timing of the change in
the withdrawal of the privilege which he had counte-
nanced for so long a period of time and the manner in
which he sought to accomplish this belie any explanation
that it was done other than for the purpose of retaliating
against the employees for seeking union representation.
Chateau deVille, Inc., 233 NLRB 1161, 1169 (1977). Cf.
Chandler Motors, Inc., 236 NLRB 1565 (1978). There-
fore, I find that by withdrawing the long-standing prac-
410
JOE & DODIE'S TAVERN
tice of allowing employees to eat or take food home
after work and refusing to allow employees to remain on
the premises longer than 15 minutes after the completion
of their shifts, the Respondent was engaging in unlawful
reprisal against the employees in violation of Section
8(a)(1) of the Act. "
The General Counsel contends that the section of the
"Rumor vs. Fact" letter relating to the loss of employee
independence if represented by the Union, is a separate
violation of the Act. In my judgment, this contention is
meritorious. The language of that portion of the letter
conveys to the employees that they would "absolutely"
lose all direct access to management if they chose to be
represented by the Union. By telling the employees they
would be hiring the Union to do their talking for them in
their dealings with Respondent, and that Respondent
"would be legally obligated to deal solely through [the]
Union," the Respondent was conveying the message that
all direct dealing between it and the employees would be
foreclosed and intervention of the bargaining representa-
tive would become necessary "each and every time."
Sacramento Clinical Laboratory, Inc., 242 NLRB 944, 945
(1979). See also C & J Manufacturing Company, 238
NLRB 1388 (1978). The Board has held that expressions
such as this are unlawful because it communicates an er-
roneous statement of the law20 and portends a clear
threat of loss of benefit; i.e., employees being able to
make their own decisions and communicate directly with
management.
It is asserted that Joe Ross, the former owner, unlaw-
fully interrogated employees Ron Barnes and Douglas
Starms about their sympathies regarding the Union. The
General Counsel contends that Ross was an agent of Re-
spondent thereby making Respondent liable for any un-
lawful statements that he may have uttered. The thresh-
old issue to be decided regarding this contention is the
status of Ross and whether his conduct can be imputed
to Respondent. The parties stipulated that under the
terms of the sale of the business to Respondent, Ross was
to receive monthly payments on a promissory note over
a period of 15 years. The testimony establishes that
except for the 2 months immediately following the sale
of the business (November and December 1978), Ross
played no active role in the operation of the business.
There is no evidence in the record to establish that Re-
spondent authorized Ross to speak to the two employees
nor is there any evidence that Respondent ever became
aware that he had done so; even though his conversation
was in keeping with Respondent's established hostility
toward the prospect of the employees being represented
by the Union. The only basis, therefore, for imputing
'Q Although the complaint was not amended to allege the withdrawal
of the privilege of remaining after work as a violation, this issue was fully
litigated at the hearing since it was integrally related to the matter of the
withdrawal of the eating privileges Accordingly, I find, on the basis of
the testimony, that the withdrawal of this longstanding practice was also
a separate violation of the Act. Chateau deVille. Inc.. supra, fn. 2.
20 Sec. 9(a) of the Act preserves the right of individual employees or
groups of employees to approach management with respect to grievances
without intervention of the exclusive bargaining representative, as long as
any adjustment of such grievance is not inconsistent with the collective-
bargaining agreement, and provided the bargaining representative is
given an opportunity to he present.
Ross' conduct to Respondent is the financial arrangement
required by the terms of sale of the business.
Ross had severed all connection with the operation of
the business, and apparently only visited the restaurant in
the capacity of a customer during the time of the orga-
nizing effort. While it is true that during the course of
his discussion with Barnes and Starms, he told the em-
ployees he was receiving monthly payments from Re-
spondent for the sale of the business, I do not deem this
sufficient to confer upon him authority to act or speak
on behalf of Respondent. Nor do I find it likely that the
employees viewed him as speaking on behalf of manage-
ment. In these circumstances, I find that Ross was not an
agent of Respondent and his statements to the employ-
ees, whether lawful or not, cannot be attributed to Re-
spondent.
The complaint alleges that after the altercation be-
tween Fowler and Sullivan on July 28, Seidler solicited
direct dealings with the employees and sought to bypass
the Union. In support of this contention the General
Counsel relies on the telephone conversation between
Seidler and Sullivan in which she reported the incident
that had occurred earlier with Fowler. Sullivan testified
Seidler suggested she and Sproull meet with him and
that there was no reason to wait for the "union thing to
be settled," because they could sit down and start negoti-
ations immediately and get the whole matter straightened
out. Sproull, to whom Sullivan was repeating Seidler's
portion of the conversation as she spoke to him, testified
that Seidler wanted to meet with the two of them the
following day "to straighten out all of this mess and the
Union seemed to be in [after the election] and get all of
the baloney over and start negotiations with them."
Seidler gave no testimony regarding this conversation
except to say that he had arranged to meet with Sproull
and Sullivan the following afternoon.
In light of the circumstances surrounding this particu-
lar phone call after the fight between Fowler and Sulli-
van, and in view of what was obviously the high emo-
tional state of Sullivan at the time of the phone call, I am
unwilling to find that Seidler made an offer to negotiate
during this conversation. Based on Sullivan's testimony,
there was an offer to negotiate but Sproull, to whom the
conversation was being repeated as it took place, cast the
offer in a different light. On the basis of his testimony,
Seidler's offer could be interpreted to sit down and
straighten out the difficulty between the employees with
Sproull and Sullivan and start negotiations with the
Union, since he felt they won the election. Even in the
absence of more definitive testimony from Seidler re-
garding this incident, it is clear that the testimony of-
fered in support of finding a violation is at best ambigu-
ous. Since differing versions can be constructed from the
testimony of the General Counsel's own witnesses re-
garding this incident, I do not feel that the testimony is
reliable enough to establish a violation. Accordingly, I
find that the General Counsel has failed to present suffi-
cient probative evidence to support a finding that Seidler
offered to negotiate directly with the employees and
bypass the Union.
411
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regarding the changes in the employees' work sched-
ules, I conclude that the record supports a finding that
changes were made for unlawful reasons. LaFountain ad-
mitted that he made the changes and reduced the
number of hours the employees were scheduled to work
because they had "too much idle time for hostility," i.e.,
in which to vent their differences over the Union. The
fact that the employees had idle time is directly related
to his earlier decision to hire additional employees in
June to offset the influence of the union sympathizers
and to lend support to the employees opposed to union
representation. Thus, as Stark stated, there were more
employees assigned to handle the customers than were
needed.
Having found himself in a situation, which he know-
ingly created, where he had employees with idle time on
their hands, LaFountain found it necessary to reduce the
work hours of all of the employees. This circumstance,
caused by his antipathy toward the union supporters, had
the net effect of reducing the opportunity available to
the employees to earn tips in the dining rooms. It also
reduced the number of hours the hourly paid employees
worked, thereby reducing their income. It is evident
from the record and the admissions of LaFountain that
the rescheduling resulted from his attempts to interfere
with and undermine the organizational efforts of the
union adherents. For this reason, I find the changes in
the work schedules were caused by unlawful reasons and
violated Section 8(a)(l) of the Act. Jack August Enter-
prises. Inc., 232 NLRB 881, 886 (1977). Cf. Mercy-Memo-
rial Hospital Corporation, 231 NLRB 1108, 1117 (1977).
Finally it is argued that Sproull and Sullivan were dis-
charged on July 29 because they were the leading union
activists among the employees. Respondent contends,
however, that Sullivan was terminated for "insubordina-
tion" because she violated the dress requirements the
evening before and because she had numerous confronta-
tions with other employees. Respondent also contends
that Sproull was a supervisor and therefore his discharge
did not violate the Act.
It is clear from the testimony of all the witnesses that
as the chief activist on behalf of the Union, Sullivan had
several loud and, on occasion, profane confrontations
with some of her coworkers over the subject of having a
union represent the employees. It is equally clear that
LaFountain was aware of these disputes. Indeed,
Rohwer testified she reported each encounter she had
with Sullivan directly to LaFountain. LaFountain, him-
self, testified that Yates (another of the antiunion em-
ployees) felt his regular employment with the State Fran-
chise Tax Board was being jeopardized because Sullivan
and Sproull allegedly threatened to contact his superiors
regarding his claim that he would cause the employees'
state income tax returns to be audited. Although he
stated he considered the complaints against Sullivan to
be petty, he, nevertheless, became angry with Fritz when
she refused to believe his assertion that Sullivan had
threatened Carter with bodily harm because of their dif-
ferences over the Union. From his own testimony, it is
evident that LaFountain never discussed any of the inci-
dents arising between Sullivan and the antiunion employ-
ees with Sullivan but, rather, accepted the versions re-
layed to him by the employees who were antagonistic
toward her union objectives.
The intensity of the animosity of the antiunion em-
ployees toward Sullivan escalated when Fowler was re-
hired by LaFountain. Although Fowler placed the blame
for the enmity in their relationship on Sullivan, I do not
credit her testimony in this regard. Fowler impressed me
as a person with an extremely volatile personality and
prone to explode when she felt things were not going
her way. Her ill feeling toward Sullivan and the Union
came through in her testimony even though she was tes-
tifying about events long since past. Moreover, the reluc-
tant manner in which she finally acknowledged that she
had been rehired by LaFountain to give support to the
antiunion employees (specifically Carter) demonstrates
that Fowler was not beyond shading portions of her tes-
timony in order to give something less than an accurate
account of events. For these reasons, where Fowler's tes-
timony is in conflict with testimony of others regarding
events relevant here, I do not find her statements to be
reliable or trustworthy. That LaFountain was unaware
of the explosive qualities of Fowler's character seems
highly unlikely. Indeed, it is reasonable to infer in these
circumstances he enlisted Fowler's support in opposing
the organizing efforts of Sullivan because of these very
obvious characteristics of her personality. Accordingly, I
find that in each instance where there was a verbal or
physical confrontation between Fowler and Sullivan,
Fowler was the aggressor and precipitated the argument.
I further find that LaFountain was fully aware the hostil-
ity was reaching such a crescendo that the violent en-
counter was fully predictable, but took no steps to
temper the dispute until after Fowler attacked Sullivan
on July 28. When LaFountain acted, he did so by accus-
ing Sullivan of being "out of uniform" and thus insubor-
dinate. LaFountain had been aware that Sullivan's uni-
form differed from the required attire since he had assist-
ed her earlier that evening to set up a table in her dining
area and had talked to her privately about other matters.
At no time while doing so, did he admonish or even
mention to Sullivan that she was not wearing the pre-
scribed uniform.
From this, I find it reasonable to conclude that La-
Fountain initiated a scenario (by hiring and enlisting the
support of Fowler), encouraged its explosive climax (by
failing to take steps to temper the ill feeling among the
antiunion employees), and then seized upon the alterca-
tion to discharge Sullivan for an entirely unrelated
reason (insubordination). It is evident that LaFountain
did not attempt to uncover the facts surrounding the al-
tercation nor did he make any effort to ascertain which
employee was the aggressor at the time of the fight. He
simply chose to level the anomalous charge of insubordi-
nation at Sullivan and used this as justification for her
discharge. In so doing, it is evident that LaFountain
seized upon the breach of the uniform requirements as an
effort to conceal the true motive for firing Sullivan; i.e.,
to get rid of the leading union activist among the em-
ployees.
For the above reasons, I find that Sullivan's discharge
was caused by her role on behalf of the Union and was
412
JOE & DODIE'
an effort on the part of Respondent to discourage sup-
port for the Union among the other employees. This
conduct violates Section 8(a)(1) and (3) of the Act. See
First National Bank of Pueblo, 240 NLRB 184 (1979).
I also find that Sproull was discharged because La-
Fountain considered him to be a protector and supporter
of Sullivan in her efforts on behalf of the Union. As La-
Fountain acknowledged, when he recommended that
Sproull be fired, he did so because Sproull sided with
Sullivan in her differences with the antiunion employees.
Although LaFountain and Vota indicated they were
"afraid" of Sproull and what he might do because of his
relationship with Sullivan, I reject this claim as nothing
more than a pretext to mask the true reason for discharg-
ing Sproull. The incident described by these management
witnesses allegedly occurred on Mother's Day, prior to
the union activity, wherein Sproull was under the im-
pression LaFountain was going to discharge Sullivan be-
cause of some dispute with Webb. By LaFountain's own
account, he considered Sproull's fears in this regard to
be unfounded and humorous. Thus, it can hardly be said
that he was fearful of Sproull or what he might do.
The crucial question concerning Sproull's discharge,
therefore, is whether he was a supervisor at the time and
thus removed from the protection of the Act. On the
basis of the credited testimony, I find that Sproull was a
rank-and-file employee who by virtue of his duties and
experience was the lead bartender at Respondent's estab-
lishment.
Although LaFountain testified that Sproull had the
title of bar manager, analysis of his duties and the extent
of his authority belie the managerial designation. Ac-
cording to LaFountain, it was his practice to first inter-
view applicants for positions behind the bar or in the
cocktail lounge and then send them to Sproull for a
second interview and recommendation regarding their
suitability. The testimony indicates this was done on
three occasions-involving one bartender (McLaughlin)
and two cocktail waitresses (Gerber and Bennet). How-
ever, the record also indicates that LaFountain trans-
ferred other employees (Yates and Winters) from the res-
taurant to work behind the bar without consulting
Sproull and ordered him to train them in the duties of a
bartender. In addition, LaFountain hired several other
individuals to work either behind the bar or in the cock-
tail lounge without requiring an interview or a recom-
mendation by Sproull. Thus, it is apparent that Sproull
was only called upon to interview and make recommen-
dations regarding job applicants for the bar area on a
very limited and sporadic basis and that the authority for
hiring employees in this area rested solely with LaFoun-
tain.
In addition, it is clear from Sproull's testimony that he
had no authority to discharge undesirable employees or
even effectively recommend their dismissal. The testimo-
ny is unrefuted that Sproull sought to have Jacobson dis-
missed as a cocktail waitress because he felt she spent
too much time conversing with friends and neglecting
customers. LaFountain rejected this recommendation be-
cause he felt she presented a good image for the bar.
Sproull also tried to get rid of Rhinehart as a bartender
and when LaFountain ignored his recommendation in
'S TAVERN 413
this regard, took the issue of his authority to hire and
fire bar employees directly to Seidler. As a result of this,
LaFountain and Sproull had a meeting regarding the
limits of Sproull's authority over the bar employees. La-
Fountain made it clear at this meeting that any assertion
by Sproull of authority to hire or fire employees was
subject to his (LaFountain) final approval. Indeed, re-
garding Rhinehart, LaFountain ignored Sproull's com-
plaints about the employee and took the position that his
deficiencies were caused by the procedure requiring him
to ring up the wine tickets for the dining room waitress-
es. Although Seidler testified that Rhinehart was fired
shortly after Sproull's complaints to him, he offered no
details regarding this employee's ultimate discharge. The
unrefuted testimony of Sproull, however, discloses that
Rhinehart was ultimately discharged because he was ill
with infectious hepatitis while on the job and Gerber, a
cocktail waitress, called Seidler and insisted that Rhine-
hart be terminated.
Respondent points to several other incidents regarding
the bar area employees to indicate that Sproull had su-
pervisory authority. The first relates to McLaughlin who
was working as a bartender. Sproull testified that La-
Fountain approached him and stated he heard rumors
that McLaughlin was not ringing up all of the money for
the price of drinks and was pocketing the difference. It
was arranged that Sproull would provide a customer
friend of his with house money to order drinks from
McLaughlin while Sproull was away from the bar. Al-
though this ruse failed to reveal any dishonesty on the
part of McLaughlin, the employee was called into La-
Fountain's office and discharged. LaFountain's vague as-
sertion that he believed Sproull fired McLaughlin is dis-
credited." According to Sproull, when he went into La-
Fountain's office McLaughlin had already been terminat-
ed by the manager.
The second incident relates to Sproull's writing up an
efficiency report on Gerber. Sproull credibly testified
that LaFountain wanted to fire Gerber and directed him
to fill out an efficiency report on her job performance.
On the basis of this efficiency report, Sproull wrote a
letter of reprimand to Gerber pursuant to LaFountain's
instructions and gave her 2 weeks to straighten out her
personal problems so that they did not interfere with her
job performance. Sproull subsequently informed La-
Fountain that Gerber's performance had improved and
the matter was dropped. It is evident from this that
Sproull was acting pursuant to direct instructions from
LaFountain and in no way exercised any independent
judgment in handling the employment problem with
Gerber.
It is also evident from the unrefuted testimony that
Sproull did not set the wages for the employees nor was
he able to grant them any wage increases. Although
Sproull set up a work schedule for the bar employees,
this schedule was routinely done and subject to change
whenever LaFountain placed other employees in the bar
21 do not credit aFountain's version of this incident nor do I credit
his testimony where it conflicts with that of other witnesses because of
the cessive manner in which he testified generalls, and because he im-
pressed me is beinlg es thani canidid throughout most of his testinltnv
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
area. Moreover, the credited testimony of the bar em-
ployees, as well as the testimony of Sproull, indicates
that when the employees wanted time off or desired to
leave early they had to secure permission from LaFoun-
tain. While Sproull had authority to direct the cocktail
waitresses to remain beyond their scheduled hours when
the lounge was busy, it is evident from the testimony of
Jacobson that all the other bartenders, concerning whom
there is no claim of supervisory authority, also possessed
this authority when on duty.
Much is made of the fact that Sproull accompanied
LaFountain on a survey of cocktail lounges in the area
to establish competitive prices for drinks and to view
their bar arrangements and supplies. But the record also
discloses that the price of drinks ultimately established
for Respondent's bar was fixed by LaFountain, and any
ordering of bar supplies such as glassware by Sproull
had to be first approved by LaFountain and all liquor
supplies were ordered by Vota after receiving a request
from Sproull.
Finally, there is a situation regarding the keys to the
office and the combination to the safe. Since Sproull's
shift lasted until 2 p.m., he had the responsibility for
locking up and turning on the burglar alarm. However,
keys to the office and the burglar alarm were possessed
by the janitor and other nonsupervisory employees such
as the bookkeepers had keys to the office and the combi-
nation to the safe.
In light of the above, it is apparent that Sproull was
not a supervisory employee but, rather, was a working
lead or head bartender. He did not have authority to hire
or fire bar area employees, nor did he effectively recom-
mend such action except in three limited instances.
Indeed, his efforts to attempt to assert such authority
were consistently nullified and rejected by LaFountain.
As the only experienced bartender regularly employed
by Respondent, Sproull gave instructions on mixing
drinks and other duties at the bar. But beyond this, he
only exercised some ministerial supervisory functions
such as working out employee schedules and requesting
that cocktail waitresses work beyond their shifts if the
business warranted it. But even here, he was powerless
to discipline a waitress on his own if she refused. See
Innkeepers of Ohio, Inc., d/b/a Ramada Inn of Fremont,
221 NLRB 331, 334 (1975). 1 find, therefore, that Sproull
did not responsibly direct the work of the bar area em-
ployees other than in a routine fashion, and further, that
this authority rested solely with LaFountain. Cf. Howard
Johnson Company, 236 NLRB 1206, 1207 (1978). Nor
was he able to exercise independent judgment in stocking
the bar with supplies but rather had to get approval of
the manager. The fact that Sproull was salaried as op-
posed to being hourly paid and the fact that he received
a Christmas bonus in 1979 does not, in these circum-
stances, elevate him to supervisory status since his duties
did not involve the use of discretion or independent
judgment in matters relating to other bar area employees.
See Amcon International, Inc., 205 NLRB 1182, 1186-87
(1973).
I find, therefore, that Sproull was a rank-and-file em-
ployee at the time he was discharged by Respondent. On
this basis, I find that he was entitled to the protection of
the Act and that he was discharged because he support-
ed Sullivan in her efforts to secure union representation
for the employees. By so doing, Respondent interfered
with Sproull's right to assist and support the union orga-
nizing effort and discriminated against him in order to
discourage membership in the Union. Accordingly, I find
that by discharging Sproull on July 29, Respondent vio-
lated Section 8(a)(1) and (3) of the Act.
The Ruling on the Challenged Ballot of Sproull
Having found that Sproull was a nonsupervisory em-
ployee, it follows that the challenge to his ballot cast in
the representation election is without merit. Accordingly,
it is recommended that the challenge to Sproull's ballot
be overruled and his vote counted in a revised tally of
ballots. Since the Board in its Order adopting the Re-
gional Director's recommendations deferred the opening
and counting of the ballot of Barbara Daley pending the
ruling on the challenge to the ballot of Sproull, Daley's
ballot should be opened and counted at the same time.
CONCLUSIONS OF LAW
1. Respondent, Dick Seidler Enterprises, d/b/a Joe &
Dodie's Tavern, is an employer within the meaning of
Section 2(2) of the Act engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Hotel and Restaurant Employees and Bartenders
Union, Local No. 49, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By promulgating and maintaining a rule prohibiting
employees from eating or taking their meals home after
work in order to retaliate against employees for engaging
in protected activity and to discourage support for the
Union, the Respondent violated Section 8(a)(1) of the
Act.
4. By changing its prior practice and thus forbidding
employees from remaining on the premises longer than
15 minutes after completion of their work shifts in order
to retaliate against employees for engaging in protected
activity and to discourage employee support for the
Union, the Respondent violated Section 8(a)(1) of the
Act.
5. By advising employees that they would lose the
right to present their grievances directly to management
if they were represented by the Union in order to dis-
courage employee support for the Union, Respondent
violated Section 8(a)(l) of the Act.
6. By reducing the work hours of its employees be-
cause they selected the Union as their collective-bargain-
ing representative, the Respondent violated Section
8(a)(l) of the Act.
7. By discharging Rosalee Sullivan because she was
the leading union activist and Donald Sproull because he
supported Sullivan in her efforts on behalf of the Union,
Respondent violated Section 8(a)(l) and (3) of the Act.
8. The strike engaged in by the employees, commenc-
ing July 31, 1979, was in protest of Respondent's unlaw-
ful conduct and thus was an unfair labor practice strike.
9. Joe Ross is not an agent of Respondent and thus Re-
spondent, through Ross, did not unlawfully interrogate
employees about their union activities or sympathies.
414
JOE & DOD)IE'S TAVERN
10. Respondent through its owner, Dick Seidler, did
not solicit employees to negotiate directly with him and
thus bypass the Union.
11. The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
TIl REMtI)Y
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section
8(a)(l) and (3) of the Act, the Respondent shall be or-
dered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act. In light of the finding that Respondent unlawfully
discharged Rosalee Sullivan and Donald Sproull, it shall
be ordered to offer them full and immediate reinstate-
ment to their former positions of employment or, if those
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges and make them whole for any loss of
earnings they have suffered by reason of the unlawful
discrimination against them. In addition, the employees
who participated in the strike caused by Respondent's
unfair labor practices shall, upon their application for re-
instatement, be reinstated to their former positions or, if
such positions no longer exist, to substantially equivalent
positions, without impairment to their seniority and other
rights and privileges, dismissing if necessary, any persons
hired as replacements on or after July 31, 1979. If after
such dismissals, there are insufficient positions remaining
for all of the striking employees who desire reinstate-
ment, the available positions shall be distributed among
them, without discrimination because of their union
membership or activities or participation in the strike, in
accordance with seniority or other nondiscriminatory
practices as have been applied in the past by Respondent
in the conduct of its business at its Folsom, California,
facility. Those strikers for whom no employment is im-
mediately available after such distribution shall be placed
upon a preferential hiring list with priority determined
among them by seniority or other nondiscriminatory
practices and, therefore, in accordance with such system,
they shall be offered reinstatement as positions become
available and before other persons are hired for such
work. The striking employees shall be made whole for
any loss of earnings they may have suffered or may
suffer by reason of Respondent's refusal, if any, to rein-
state them by payment to each of a sum of money equal
to that which he or she would have earned during the
period from 5 days after the date on which he or she ap-
plied, or shall apply, for reinstatement to the date of Re-
spondent's offer of reinstatement, absent a lawful justifi-
cation for Respondent's failure to make such an offer.
Backpay and interest thereon for the unlawful discrimin-
atees and the striking employees shall be computed in the
manner prescribed in F: W. Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977).22
Finally, having found that Respondent discriminatorily
reduced the working hours of its employees, Respondent
22 See, generally, Isis Plumbing & Ieaulig (Co. 138 NLRB 716 (1976)
shall be ordered to make whole all employees adversely
affected by its action for any loss they may have suf-
fered. Interest shall be computed in the manner set forth
above, provided, however, that no employee shall be re-
quired to repay Respondent any sum of money by reason
of the recomputation of earnings required by this Deci-
sion.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 2 3
The Respondent, Dick Seidler Enterprises, d/b/a Joe
& Dodie's Tavern, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Promulgating and maintaining a rule prohibiting
employees from eating or taking their meals home after
work in order to discourage employee support for the
Union and in retaliation for employees engaging in pro-
tected activity.
(b) Changing the prior practice of allowing employees
to remain on the premises after working hours and re-
quiring employees to leave the premises within 15 min-
utes after completion of their shifts in order to discour-
age employee support for the Union.
(c) Advising employees that they will lose the right to
present their grievances directly to management, if they
are represented by the Union.
(d) Reducing the work hours of its employees because
they have selected the Union as their collective-bargain-
ing representative.
(e) Discharging employees because they engage in ac-
tivities on behalf of the Union and in order to discourage
membership in the Union.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make whole employees for any loss of pay they
may have suffered by reason of the discrimination found
herein relating to the reduction of the number of hours
and nights of employment in the manner described in the
section entitled "The Remedy."
(b) Offer to Rosalee Sullivan and Donald Sproull im-
mediate and full reinstatement to their former positions
or, if those jobs no longer exist, to substantially equiv-
alent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for
any loss of pay they may have suffered by reason of the
discrimination against them in conformity with the sec-
tion of this Decision entitled "The Remedy."
(c) Upon application of the employees who participat-
ed in the strike which began on July 31, 1979, and who
have not already been reinstated, offer full and immedi-
ate reinstatement to their former positions or, if those po-
2 In tie ent Io exceptions are filed as provided by Sec 102 46 of
the Rules and Regulations of Ihe Nationlal ahor Relallions Board. the
filnings, conlclusions, and recommended Order herein shall, as prosidled
in Sec 102 4 of the Rules and Regulallons. he dopted h the Board and
hecome ts findings. conclusions, and rder, and all objections Ithereto
shall he deemed %k alsed fir all purpolses
415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sitions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights
and privileges, dismissing if necessary, any persons hired
as replacements on or after July 31, 1979. If, after such
dismissals, sufficient jobs are not available for these em-
ployees, they shall be placed on a preferential hiring list
in accordance with their seniority or other nondiscrimin-
atory practice utilized by Respondent, and they shall be
offered employment before any other persons are hired.
Make whole these employees for any loss of earnings
they may have suffered or may suffer by reason of Re-
spondent's refusal, if any, in the manner set forth in the
section of this decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security records, timecards, per-
sonnel records and reports, and all other records neces-
sary and relevant to analyze and compute the amount of
backpay due under the terms of this recommended
Order.
(e) Post at its Folsom, California, facility copies of the
attached notice marked "Appendix B."24 Copies of said
4 In the venl this Order is enfiorced by a Judgmentt of a [Unlled
States Court of Appeals, tile words irl the notice reading "P'std hby
notice on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent's au-
thorized representative, shall be conspicuously posted
immediately upon receipt thereof and maintained for 60
consecutive days thereafter, in places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices
are not altered, defaced, or covered by any other materi-
al.
(f) Notify the Regional Director for Region 20, in
writing, within 20 days of the date of this Order, what
steps Respondent has taken to comply herewith.
)rder of the National Labor Relations Board" shall read "'osted Pursu-
ant t a Judgmentt of he United States Court of Appeals Enfiorcing an
)rder of the Nattional abor Relations Board "
416