Kirby'S Restaurant

National Labor Relations Board - Board Decisions

Jun 30, 1989

295 N.L.R.B. 897 (N.L.R.B. 1989)

KIRBY 'S RESTAURANT 897
Leon Pano, a Sole Proprietorship d/b/a Kirby's
Restaurant and Hotel Employees, Restaurant
Employees and Bartenders Union Local 28,
AFL-CIO. Case 32-CA-9670
June 30, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On March 16, 1989, Administrative Law Judge
Earldean V . S. Robbins issued the attached deci-
sion . The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge 's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that Leon Pano, A Sole Propri-
etorship d/b/a Kirby's Restaurant, El Cerrito, Cali-
fornia , its officers, agents, successors , and assigns,
shall take the action set forth in the Order.
I The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products , 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951)
We have carefuly examined the record and find no basis for reversing the
findings.
The Respondent in his exceptions argues that the predecessor employer
paid employees their accrued vacation benefits . We leave resolution of
this issue to compliance proceedings.
Sharon Chabon , Esq., for the General Counsel.
Leon Pano , of South San Francisco , California, in pro
per.
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge.
This case was heard before me in Oakland, California, on
October 6 and 26 , and November 1, 1988. The charge
was filed by Hotel Employees, Restaurant Employees
and Bartenders Union, Local 28, AFL-CIO (the Union)
and served on Leon Pano , a sole proprietor, d/b/a
Kirby's Restaurant (the Respondent), on June 6, 1988.
The complaint, which issued July 21, 1988 , alleges that
Respondent violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act (the Act). A posttrial brief
was filed by the General Counsel.
The basic issues are : (1) Whether Respondent violated
Section 8 (a)(1) and (5) by making unilateral changes and
by engaging in direct dealings with its employees; and
(2) whether Respondent violated Section 8(a)(1) of the
Act by threatening an employee because she filed a
grievance and by polling employees to determine their
support for the Union.
On the entire record , including my observation of the
demeanor of the witnesses , and after due consideration of
the posthearing brief filed by the General Counsel, I
make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material prior to February 5, 1988, Dave
Viale d/b/a Kirby's Restaurant (Kirby's or the Restau-
rant), was engaged in the operation of a public restaurant
selling food and beverages . On February 5, 1988, Re-
spondent purchased the assets , liabilities , and goodwill of
Kirby's and since that date has continued to operate the
business of Kirby's in basically unchanged form with the
same restaurant manager and substantially the same em-
ployees . Respondent admits it has continued the employ-
ing entity and is a successor of Kirby's.
During the 12 months immediately preceding Re-
spondent 's February 5, 1988, takeover of Kirby's Restau-
rant, Kirby's, in the course and conduct of its business
operations described above, derived gross revenues in
excess of $500,000 and purchased or received goods or
services valued in excess of $50,000 which originated
outside the State of California. Based on either Kirby's
operations during the 12 months prior to Respondent's
takeover on February 5, 1988, or on a projection of Re-
spondent 's operations since its takeover, Respondent, in
the course and conduct of its business operations, will
annually derive gross revenues in excess of $500,000 and
purchase goods or services valued in excess of $5000
which will originate outside the State of California.
The complaint alleges, Respondent admits, and I find
that at all times material herein , Respondent has been an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that at all times material, the Union has been a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
Many of the facts are undisputed . Prior to Respond-
ent's February 5, 1988,11 purchase of Kirby's , and since at
least 1981, the Union was the designated exclusive col-
lective-bargaining representative of the following em-
ployees in a multiemployer unit:
All full time and regular part-time cooks , dishwash-
ers, buspersons, cashiers , hosts, and waiters/wait-
resses employed at Kirby's and El Cerrito Station at
I Unless otherwise indicated, all dates herein are in 1988
295 NLRB No. 90
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
#10 El Cerrito Plaza, El Cerrito, California, exclud-
ing all other employees, guards and supervisors as
defined in the Act.
Kirby's was party to successive collective -bargaining
agreements covering these employees , the most recent of
which is effective for the period October 22, 1983, to
October 22, 1988 . As set forth above, Respondent admits
that it is a successor employer to Kirby's. Pano admits in
his testimony that he did not inform employees , either
prior to the takeover or at the time of the takeover, that
they would be working under different terms and condi-
tions of employment.
A. The Events of January, February, and March
Corinne Comer, a business representation for the
Union testified that during the latter half of January, she
and Malcolm Samuels, senior business representative for
the Union, went to Kirby's. According to her, Pano and
his wife were there . Samuels and Comer introduced
themselves to the Panos but made no attempt to conduct
any business . Samuels also introduced Comer to individ-
ual employees as their new union representative . At least
one employee, Mary Parez, expressed concern regarding
insurance coverage . Pano denies such a visit . Samuels
testified he does not recall going to the restaurant with
Comer, and that he first met Pano when he went to the
restaurant in February with Union Agent Dan Cassidy.
According to him, sometime in February it came to his
attention that Kirby's had been sold. Later that month he
and Cassidy went to the restaurant, introduced them-
selves to Pano, and told him they would like to arrange
a meeting for contract negotiations . Pano said that was
no problem, that he would contact Samuels as soon as he
could speak with Dave Viale, the previous owner. How-
ever, Pano never contacted Samuels.
Comer testified that she returned to the restaurant on
February 5 at which time she exchanged greetings with
Pano, and discussed with Parez her complaint with
regard to the failure to pay medical bills. However, Pano
testified that the purchase of Kirby's was being finalized
and he was not at the restaurant on that date. Later that
day, according to Comer, she made some inquiries re-
garding Parez ' complaint and wrote her a letter with in-
structions as to how to handle medical bills . Comer also
testified that she returned to the restaurant on February
8. At this time she gave Pano the insurance forms that
employees needed to sign to continue their insurance
coverage with the new union health and welfare plan ad-
ministrators and asked him to post a notice, which she
provided, explaining the change of administrators, the
necessity of signing new insurance forms, and the proce-
dure for obtaining reimbursement for medical bills in-
curred during the time Kirby's was delinquent in paying
health and welfare premiums . Pano does not deny that
she asked him to post this notice.
On March 16 Samuels sent Respondent a letter, the
body of which reads:
Pursuant to the Current Collective Bargaining
Agreement , Local 28 is notifying you that you are
bound by this agreement.
We would like to set a date and time to com-
mence negotiations with Kirbys. Enclosed please
find a copy of the current addendum.
Please contact this office at (415) 893-3181 so
that;we may discuss all of the above.
Thank you in advance for your cooperation.
The letter was received by Respondent on March 19.
However, Pano did not respond.
According to Pano, after receiving this letter, he asked
employees if they were union . On receiving an affirma-
tive answer , Pano said he would talk to the Union.
Shortly thereafter , according to him, he had a conversa-
tion with Parez regarding insurance coverage . Parez tes-
tified that, around the end of February, she asked Pano if
he was going to provide medical insurance for employ-
ees. Pano asked if the employees had any current cover-
age. Parez said they did not. Pano said he would contact
someone for them.
Pano testified that Parez said the employees had no in-
surance coverage and wanted Pano to find an insurance
company they could speak to regarding coverage. Pano
agreed to call some insurance companies regarding
speaking to the employees . Pano said he would not talk
to the insurance representatives, that the employees
would have to do so, and that they should also speak to
their Union . He further said he did not want each em-
ployee coming to him with their individual preferences.
Rather the employees should get together, decide what
they wanted, and have one employee talk to him and to
the Union regarding insurance . According to him, he
also said the employees should make a choice, provided
they talked with their Union.
Subsequently , according to Parez, an insurance agent
contacted her and set up several meetings . At the first
meeting, there were not enough employees in attend-
ance . At the second meeting, the insurance representa-
tive did not bring sufficient materials . At some point
after this meeting, Parez told Pano they did not have
enough information to make a decision . Pano made no
response other than to say the employees should choose
what they would like.
On April 12, Samuels hand -delivered a letter to Pano,
the body of which reads:
On March 19th , 1988 your office received a reg-
istered letter from Local 28 asking for a meeting
date to resolve the change of ownership of the res-
taurant. As of this date we have not heard from you
regarding this matter therefore we assume that you
have assumed all the terms and conditions of the
collective bargaining agreement.
Under the terms of aforementioned collective
bargaining agreement you have certain obligations
regarding the payment of health and welfare contri-
butions, holiday pay, sick leave, etc. Therefore, I
am again requesting that you make yourself avail-
able in order to make sure that the Union is correct
in our assumption that you are committed to
making timely payments towards the health & wel-
fare plan that is currently available to the workers
of your establishment.
KIRBY'S RESTAURANT 899
Please contact me within 24 hours after your re-
ceipt of this hand delivered letter.
B. The April Meetings Between Pano and the Union
Representatives and Between the Union
Representatives and the Employees
On April 18 Samuels and Union Representative Max
Barela went to the Restaurant and spoke to Pano in his
office . According to Barela, they told Pano that since
none of the employees had been terminated , they wanted
to sit down and discuss the contract . The subject of in-
surance was discussed . Either Barela or Samuels said
they were planning to change the present insurance to
the Oakland Restaurant and Taverns Trust Fund which
would result in a considerable savings for Respondent.
Pano said the union representatives should have a meet-
ing with the employees , that he was willing to do any-
thing his employees wanted and if they wanted to stay in
the Union and have this insurance that would be fine.
Pano further said the employees were worried about
their insurance and he had assured them some sort of in-
surance would be offered . He said the employees were
going to be contacted by a carrier he had found in the
yellow pages . Again , Pano said Samuels and Barela
should have a meeting with employees. Samuels' testimo-
ny corroborates Barela . According to him , Pano also
said there was no sense talking to him until they talked
to the employees . Barela and Samuels agreed to meet
with the employees.
Pano denies saying he would do whatever the employ-
ees wanted . According to him, one of the union repre-
sentatives said it was a union shop, and they were all
going to be in the Union . Pano said he had no objections
but they should talk to the employees and tell them that
was what they intended . Barela or Samuels said, "Well,
we'll have some meetings." He further said , "You're the
boss and you can do whatever you think is right with
your business." Pano said he had a bunch of good em-
ployees and would like to keep them in good faith with
the restaurant . According to Pano, he further said no
one wanted to get out of the Union , that the only thing
the employees wanted was to have the type of an insur-
ance plan they wanted . Pano also said he was not sure
what the employees wanted , but the Union should find
out.
On April 20 or 22, Barela and Samuels had a meeting
with about 12 to 15 employees . According to Barela, he
introduced Samuels, said they were there to discuss the
insurance problem and some information received by the
Union of a possible decertification . Barela mentioned
several disadvantages of a decertification, including the
possible loss of their present insurance coverage . At this
point , the employees mentioned that they were looking
at some other insurance coverage . Barela said when an
employer offers insurance , employees usually do not
have the option of choosing from more than one plan,
might not have dental and/or optical coverage , and the
cost factor would be higher. Barela also asked for copies
of the insurance information being offered to them. After
the meeting , Parez gave Barela and Samuels some pam-
phlets on the insurance the employees were considering.
Barela said he would have it analyzed to see if the cov-
erage was as good as the union plan.
Two to 5 days later, Barela and Samuels again met
with Pano . According to Barela, he told Pano nothing
had been resolved as to insurance coverage . He asked
Pano to sit down and negotiate with them. Pano said he
would do whatever his employees wanted him to do.
According to Samuels , Pano said he did not offer the
employees insurance , that the question of insurance had
arisen when one of the employees asked him about insur-
ance . Barela or Samuels said the restaurant was a union
house, and they wanted to negotiate . Pano showed them
the unfair labor practice charges filed by the Union and
questioned the Union's filing of the charges while talking
about negotiating . Barela again attempted to schedule ne-
gotiations . Pano responded , "You guys need to meet
with your members again , have another meeting, and
what they decide is what I will do . If they decide to stay
with the union , then I will be glad to stay with the
union , too. But if they decide that they want to get out
of the union , then that's the way I would have to go."
Pano also suggested they should not have to "go
through all of that" since the Union still got its $18 a
month. Samuels said that was not what the Union
wanted . Pano suggested they meet with the employees
again and said he would do whatever the employees de-
cided they wanted . Barela said the Union would show
good faith by withdrawing the charge.
According to Barela, during this meeting, he and Sam-
uels got the impression that Pano would sit down and
negotiate if they met with the employees again and reach
a favorable conclusion . So the following week , Samuels
and Barela again met with 10 to 12 employees . Insurance
coverage was again discussed but no conclusion was
reached . Thereafter, they had no further meetings with
the employees . Pano admits he told Barela and Samuels
they should meet with the employees again and he
would abide by the employees' decision . According to
him, the only question was whether the employees
would get their own insurance plan. He suggested the
Union should give them that option.
C. Polling of Employees as to Their Union
Representation Preference
In April , after one of the employee meetings, Parez
asked each employee at work that night to vote as to
whether they wanted the Union, and place the ballot in a
bucket on the counter . She denies that either Pano or
Ervin asked her to do this.
Waitress Renee Howley testified , without contradic-
tion, that in April Ervin approached her in the break-
room. He told her they were having a vote and asked
her to vote yes or no for the Union in writing and put it
in the bucket . Howley then went into Pano's office,
wrote her vote, and put it in the bucket. Dishwasher
Willie Jackson testified that in April, Ervin brought a
bucket to his work station and told him they were
having a secret vote . Jackson took a paper out of the
bucket, wrote his vote and put the paper back inside the
bucket.
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
D. The Changes in Work Shifts and Conversations
with Regard Thereto
It is undisputed that in April Pano changed the work
shifts of several employees , including Jackson and Pau-
line Hasenplug . Also, the work hours for Hasenplug and
Jackson were reduced . Pano admits these reductions
were made without regard for seniority and without no-
tifying, or discussing the changes with , the Union. Ac-
cording to him , the cuts were made because of "poor
business."
When Hasenplug's hours were reduced , she com-
plained to Pano. According to her, she told Pano she
wanted her shift, that it was not fair to give her hours to
someone with less seniority . Pano said they started "from
scratch," that everyone was a new employee when he
took over and her seniority did not count. On June 17
Hasenplug filed a grievance with the Union protesting
the change in the shift she had worked for the previous 7
years and requesting that she be reassigned to her previ-
ous shift.
Subsequently, Hasenplug testified , Pano approached
her in the breakroom with her grievance in his hand. Ac-
cording to Hasenplug , Pano said , "What's this." Hasen-
plug said , "It's just what it says, Leon . I want my shift."
Pano said, "Are you in trouble? You are really in trouble
now. You'll never get it." Pano denies telling Hasenplug
she was in trouble. According to him , he said , "Pauline,
why you went to so much trouble where there's no such
a shift exists . You cannot get that shift back because
there's no such a shift anymore ." I credit Hansenplug. I
found her to be an honest , reliable witness who was en-
deavoring to be truthful.
Jackson also complained to Pano regarding the reduc-
tion in his hours . Pano said it was better to cut hours
than to lay off an employee . A dishwasher with less se-
niority did not have his hours reduced . Prior to the
change in his shift hours, Jackson worked a 7 a.m. to 3
p.m. shift . After the change , he worked an 8:30 a.m. to 3
p.m. shift . The less senior dishwasher worked a 3 to 11
p.m. shift . Jackson admits Pano told him he could work
more hours if he took the night shift. However, Jackson
said he could not work the night shift . He does contend
that, if offered, he could work an 8:30 a.m. to 4:30
p.m.shift.
The seniority provision of Kirby's contract with the
Union provides , inter alia:
Section 5 . SENIORITY
(a) In the event that the Employer finds it neces-
sary to lay off employees due to slackness of busi-
ness, such layoffs shall be on the basis of seniority
within craft classifications if the senior employee is
capable and qualified to perform the available work,
in the employee on duty in the establishment having
the shorter period of continuous service with the
Employer shall be laid off before any other employ-
ee having a longer period of continuous service.
The Employer agrees to give preference to laid-off
employees in re-employment in the reverse order of
seniority-the last man laid off will be the first one
re-hired, unless the Employer can prove the indi-
vidual is not qualified for the job.
Whenever there is a job opening, and only then
the senior qualified employee shall have preference
of full time employment . Once the senior employee
waives his or her right to full time employment
they must wait until a scheduled full time shift va-
cancy occurs before being able to bid on a more full
time schedule.
The employer shall establish all work schedules
setting the hours and days of work , including days
off, but as much as is possible the employer will uti-
lize full time shifts . When senior employees bid on
schedule vacancies , they must bid for the entire
schedule vacancy and cannot bid for individual
shifts or days off within the vacancy.
(b) A senior employee shall have the preference
of a scheduled vacancy if their prior work record is
satisfactory and they are capable and qualified to
perform the available work when open for bid. The
Employer will post job vacancies seventy-two (72)
hours in advance.
(c) Due to slackness of business on any specific
shift the Employer reserves the right to send an em-
ployee home without the requirement to pay for a
full scheduled shift, and the employment rate for
time worked shall be maintained at the short hour
scale . If more than one employee is that day work-
ing the same shift, classification and working hours
the one with the less job seniority will have his or
hers time reduced provided the employee left is ca-
pable of performing the job assigned.
E. The Failure to Pay Vacation Pay
Pano also admits he did not pay employees any vaca-
tion pay in 1988. According to him, the employees were
all new employees of Respondent who were not entitled
to vacation pay. The vacation provision of Kirby's con-
tract with the Union provides, inter alia:
Section 31. PAID VACATIONS
(a) The period of service for the purpose of earn-
ing a vacation with pay shall begin with the date of
employment with the particular employer . After an
employee has been in the service of the Employer
for twelve (12) consecutive months, he or she will
be entitled to one (1) week 's vacation pay.
(b) After an employee has been in the service of
the Employer for twenty -four (24) consecutive
months, he or she shall be entitled to two (2) week's
vacation pay.
(c) After an employee has been in the service of
the Employer for ninety-six (96) consecutive
months (eight [8] years) he or she shall be entitled
to three (3) week's vacation pay.
(d) Vacation pay shall be the average weekly
earnings received by the employee during the year
preceding the vacation.
(e) The schedule of vacations may be arranged
by the Employer provided that the employee be
given at least two (2) week 's notice of the date of
KIRBY'S RESTAURANT
the vacation period . The full vacation period to
which an employee is entitled shall be given in con-
secutive days, as no employee shall be called back
to work during his or her vacation period. Vaca-
tions are due only after the employee has been in
the service of the Employer for one (1) year and
each year thereafter.
A subsequent letter of understanding further provides:
Under subsection (b) all employees hired after the
effective date of this agreement must work thirty-six
(36) consecutive months prior to receiving two (2)
weeks vacation pay provided the employer can
produce a signed document showing the employee
was advised of the aforementioned provision on or
before his or her hire date. All present employees
shall remain under the provision provided for in this
section.
F. June Conversations Between Pano and Samuels
On June 2, the Union sent Respondent a telegram, the
body of which reads:
LOCAL 28 DEMANDS THAT YOU AS SUCCESSOR
OWNER IMMEDIATELY MEET WITH US TO FINISH
CONTRACT NEGOTIATIONS. IF YOU CONTINUE TO
REFUSE TO MEET AND CONCLUDE NEGOTIATIONS
THE UNION WILL TAKE ECONOMIC ACTION THAT IS
APPROPRIATE.
Later that month Samuels went to the Restaurant and
spoke to Pano. According to Samuels, he asked, "Mr.
Pano, what's the problem with us sitting down and
trying to negotiate a new contract for these people?"
Pano said he did not want to do anything the employees
did not want, Samuels said Pano was the owner, he was
the employer. Pano said, "Well, it just doesn't matter."
Samuels said , "Do you know, I thought you were a
smart business man. Do you know I'm going to shut you
down?" Pano said , "Do what you have to do."
According to Pano, Samuels said , "Are we going to
have this contract negotiated or not?" He further said if
they were not going to negotiate, he would file with the
Board. Pano said he did not agree with everything with
the Union. He also said, "Talk to the employees, have
meetings and whatever comes with it, I will go with it-
you know-with whatever you say. But if you want to
file a petition over there, you go ahead and do what you
have to do but I'm here all the time to talk to you any-
time." Pano denies saying he would do whatever his em-
ployees wanted to do.
With the exception of Pano's denial that he ever said
he would do whatever his employees wanted to do, the
testimony of Samuels, Barela and Pano is not contradic-
tory, and I find that a composite of their testimony as to
their conversations more accurately reflect what was
said . Further, I credit Barela that Pano said he would do
what the employees wanted. According to Pano's own
version of his June 2 conversation with Samuels , a simi-
lar statement was made.
IV. CONCLUSIONS
901
A. The Alleged Violations of Section 8(a)(5)
The Supreme Court has held that a successor en: ploy-
er is ordinarily free to set the initial terms on which it
will hire the employees of a predecessor since the contin-
ued majority status of the bargaining representative of
the predecessor's unit employees is not evident until the
succesgor has hired a full complement of employees.
However, the Court also recognized that "there will be
instances in which it is perfectly clear that the new em-
ployer plans to retain all of the employees in the unit and
in which it will be appropriate to have him initially con-
sult with the employees' bargaining representative before
he fixes terms." NLRB v. Burns Security Services, 406
U.S. 272 (1972).
The Board has interpreted this caveat to be restricted
to "circumstances in which the new employer has either
actively or, by tacit inference, misled employees into be-
lieving they would all be retained without change in
their wages, hours, or conditions of employment, or at
least to circumstances where the new employer . . . has
failed to clearly announce its intent to establish a new set
of conditions prior to inviting former employees to
accept employment." Spruce Up Corp., 209 NLRB 194
(1974); L. A. Beefland, 232 NLRB 1189 (1977).
Here, Respondent continued to employ the same unit
employees and made no announcement either prior to or
on the day of the takeover that it would eliminate the
prior seniority credit of employees. I therefore find the
Respondent was obligated to notify and consult with the
Union prior to implementing changes in wages, hours,
and terms and conditions of employment. Accordingly, I
find that, by unilaterally eliminating seniority credit
earned during employment with the predecessor employ-
ers for purposes of determining vacation pay entitlement,
Respondent has violated Section 8(a)(5) and (1) of the
Act. I further find that by the reduction of hours for
Pauline Hasenplug and Willie Jackson without regard to
their seniority, and without notification to, and consulta-
tion with, the Union, Respondent has unilaterally
changed their wages, hours, and terms and conditions of
employment in violation of Section 8(a)(5) and (1) of the
Act.
I also find that by Pano's discussions with Parez and
his conduct in arranging for an insurance representative
to meet with unit employees regarding a possible change
of insurance plan, Respondent has engaged in direct
dealings with employees in violation of Section 8(a)(5)
and (1) of the Act. Fremont Ford, 289 NLRB 1290
(1988). Rogers Cleaning Contractors, 277 NLRB 482
(1985); Hiney Printing Co., 262 NLRB 157 (1982).
Finally, I conclude that, although Pano was always
willing to talk to union representatives, he was in fact
conditioning his willingness to engage in negotiations
with the Union on some vague expectation as to an ac-
ceptable outcome of the Union' s meetings with employ-
ees. In these circumstances, I conclude that Respondent's
conduct was in fact a refusal to bargain with the Union.
Accordingly, I find that Respondent thereby violated
Section 8(a)(5) and (1) of the Act.
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. The Alleged Violations of Section 8(a)(1)
It is well established that lawful polling of employees
by an employer must adhere to certain safeguards: (1)
the purpose of the poll must be to determine the truth of
a union 's claim of majority; (2) such purpose must be
communicated to the employees ; (3) assurances against
reprisal must be given; (4) the poll must be by secret
ballot; and (5) the poll must be conducted in an atmos-
phere free of unfair labor practices or other coercion by
the employer . Struksnes Construction Co., 165 NLRB
1062 (1967); Hohn Industries, 283 NLRB 71 (1987); cf.
Boaz Carpet Yarns, 280 NLRB 40 ( 1986). Here, although
most employees were polled by a fellow employer, two
employees were polled by Restaurant Manager Richard
Erwin . Based on his authority to hire and fire employees,
I find that Erwin is a supervisor within the meaning of
Section 2(11) of the Act. The purpose of the poll was
not communicated to these employees nor were they
given any assurances against reprisals . Further, the
record establishes no objective basis for any doubt as to
the Union's majority status and the poll was conducted
at a time when Respondent was engaged in unfair labor
practices in violation of Section 8(a)(5) of the Act. In
these circumstances, I find that Respondent violated Sec-
tion 8(a)(1) of the Act by polling employees with regard
to their preference for union representation . Hohn Indus-
tries, supra.
I also find that Pano's statement to Hasenplug that she
was in trouble and would never get her shift back consti-
tutes a threat of retaliation for filing a grievance in viola-
tion of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent Leon Pano , a sole proprietorship d/b/a
Kirby's Restaurant is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Hotel Employees , Restaurant Employees and Bar-
tenders Union Local 28, AFL-CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The following unit is appropriate for the purposes
of collective bargaining within the meaning of Section
9(b) of the Act:
All full time and regular part-time cooks , dishwash-
ers, buspersons , cashiers, hosts, and waiters/wait-
resses employed by Respondent at #10 El Cerrito
Plaza, El Cerrito, California , excluding all other
employees , guards , and supervisors as defined in the
Act.
4. Since February 5, 1988, the Union has been the ex-
clusive representative of the employees in the above-de-
scribed appropriate unit, for the purposes of collective
bargaining with respect to wages, rates of pay, hours of
employment and other terms and conditions of employ-
ment.
5. Since late February 1988 and continuing to date, the
Union has requested , and is requesting Respondent to
recognize and bargain collectively with it as the exclu-
sive representative of employees in the above-described
appropriate unit with respect to rates of pay, wages,
hours of employment and other terms and conditions of
employment.
6. Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the Act
by:
(a) Failing and refusing since late February 1988 to
bargain collectively with the Union as the exclusive col-
lective-bargaining representative of its employees in the
above-described unit.
(b) Unilaterally , without notice to or consultation with
the Union failing and refusing to pay its employees vaca-
tion pay, changing the shifts and/or hours of employees
in the appropriate unit without regard to each employ-
ee's seniority and announcing to employees that seniority
would no longer be a consideration in the assignment of
shifts and/or hours.
(c) Bypassing the Union and dealing directly with em-
ployees in the above -described unit with regard to health
insurance.
7. Respondent has interfered with , restrained , and co-
erced its employees in the exercise of their rights guaran-
teed in Section 7 of the Act, and has thereby engaged in
unfair labor practices in violation of Section 8(a)(1) of
the Act by:
(a) Threatening an employee with reprisals for filing a
grievance with the Union.
(b) Conducting a poll of its employees to determine
their support of the Union , without legitimate purpose
and proper safeguards.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, it is recommended that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent , in violation of Section
8(a)(5) and (1) of the Act, unilaterally eliminated seniori-
ty in determining vacation entitlement and shift changes,
I shall recommend that Respondent cease and desist
from making unilateral changes in the wages , hours, and
other terms and conditions of employment of the em-
ployees in the appropriate unit herein , and that Respond-
ent make whole said employees for any loss of pay or
other benefits they may have suffered as a result of Re-
spondent 's unilateral elimination of seniority in determin-
ing vacation entitlement and shift changes with interest
as set forth in Florida Steel Corp., 231 NLRB 651 (1977),
and New Horizons for the Retarded, 283 NLRB 1173
(1987). I will also recommend that Respondent cancel
such unilateral changes and continue the seniority policy
in effect prior to February 5, 1988 , until such time as Re-
spondent negotiates in good faith with the Union to
agreement , or to impasse.
KIRBY'S RESTAURANT 903
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed2
ORDER
The Respondent , Leon Pano , a sole proprietorship
d/b/a Kirby's Restaurant , El Cerrito, California , its offi-
cers, agents , successors , and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively with the Union as
the exclusive collective -bargaining representative of its
employees in the following appropriate unit:
All full time and regular part -time cooks, dishwash-
ers, buspersons , cashiers, hosts, and waiters/wait-
resses employed by Respondent at #10 El Cerrito
Plaza, El Cerrito, California, excluding all other
employees , guards, and supervisors as defined in the
Act.
(d) Post at its restaurant in El Cerrito , California,
copies of the attached notice marked "Appendix."s
Copies of the notice , on forms provided by the Regional
Director for Region 32 after being signed by the Re-
spondent's authorized representative , shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
(b) Unilaterally , without notice to or consultation with
the Union , eliminating seniority in determining vacation
entitlement and changes in shifts and/or hours of em-
ployment in the appropriate unit and announcing to em-
ployees that seniority would no longer be a consideration
in the assignment of shifts and/or hours.
(c) Bypassing the Union and dealing directly with em-
ployees in the above-described unit with regard to health
insurance or other terms and conditions of employment.
(d) Threatening employees with reprisals for filing
grievances with the Union.
(e) Polling its employees to determine their support of
the Union , without legitimate purpose and proper safe-
guards.
(f) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Cancel the unilateral changes heretofore made in
wages, hours, or other terms and conditions of employ-
ment of the employees in the above -described appropri-
ate unit and continue the wages , hours, and other terms
and conditions of employment in effect on February 4,
1988 , until such time as Respondent negotiates in good
faith with the Union to agreement or to impasse.
(b) Make whole the employees in the appropriate unit
for any loss of pay or other benefits they may have suf-
fered as a result of the unilateral elimination of seniority
for purposes of determining vacation entitlement and
changes in shifts and/or hours, with interest.
(c) Preserve and, on request , make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
2If no exceptions are filed as provided by Sec 102 .46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Order shall, as provided in Sec 102 .48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to meet and bargain collectively
with Hotel Employees , Restaurant Employees and Bar-
tenders Union , Local 28, AFL-CIO as the exclusive col-
lective-bargaining representative of our employees in the
following appropriate unit:
All full time and regular part -time cooks , dishwash-
ers, buspersons, cashiers, hosts, and waiters/wait-
resses employed by Respondent at #10 El Cerrito
Plaza, El Cerrito, California, excluding all other
employees , guards, and supervisors as defined in the
Act.
WE WILL NOT unilaterally, without notice to or con-
sultation with the above-named Union, eliminate seniori-
ty in determining vacation entitlements and changes in
shifts and/or hours of employees in the above -described
unit.
WE WILL NOT announce to employees that seniority
will no longer be a consideration.
WE WILL NOT bypass the Union and deal directly with
employees in the above-described unit with regard to
health insurance or any other terms or conditions of em-
ployment.
WE WILL NOT threaten employees with reprisals for
filing a grievance with the Union.
WE WILL NOT conduct a poll of our employees to de-
termine their support of the Union , without legitimate
purpose and proper safeguards.
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, meet and bargain with the
above-named Union and put in writing and sign any
agreement reached on terms and conditions of employ-
ment for our employees in the above-described bargain-
ing unit.
WE WILL cancel our elimination of prior seniority for
purposes of determining the vacation entitlement of our
employees and changes in shifts and/or hours in the
above-described unit; and WE WILL continue , retroac-
tively and prospectively , the wages, hours, and other
terms and conditions of employment of said employees in
effect prior to February 5, 1988, until such time as we
negotiate in good faith with the Union to agreement or
to impasse.
WE WILL make whole the employees in the above-de-
scribed unit for any loss of pay or other benefits they
may have suffered as a result of our unilateral elimina-
tion of seniority credit for purposes of determining vaca-
tion and entitlement and changes in shifts and/or hours.
LEON PANO, A SOLE PROPRIETORSHIP
D/B/A KIRBY 'S RESTAURANT