Kugler's Restaurant, Inc.

National Labor Relations Board - Board Decisions

Apr 13, 1965

151 N.L.R.B. 1566 (N.L.R.B. 1965)

1566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner restrain or coerce employees in the exercise
of rights guaranteed them in Section 7 of the National Labor Relations Act,
as amended.
AMERICAN NEWSPAPER GUILD, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
YOUNGSTOWN NEWSPAPER GUILD No. 11,
AMERICAN NEWSPAPER GUILD, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. Main 1-4465,
if they have any questions concerning this notice or compliance with its provisions.
Kugler's Restaurant , Inc. and Philadelphia Local Joint Execu-
tive Board , Hotel & Restaurant Employees & Bartenders
International Union, AFL-CIO and Kugler 's Employees Union
(Independent ), Party to the Contract . Case No. 4-CA-3282.
April 13, 1985
DECISION AND ORDER
On January 12, 1965, Trial Examiner Louis Libbin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exami-
ner's Decision. The Trial Examiner further found that the Re-
spondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended that the complaint be
dismissed with respect to these allegations. Thereafter, the General
Counsel and the Charging Union filed exceptions to the Trial Exam-
iner's Decision, and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations with the following modifications.
151 NLRB No. 149.
KUGLER'S RESTAURANT, INC. 1567
The Trial Examiner found that, by virtue of the participation of
certain of its supervisors in the affairs of Kugler's Employees Union
(hereinafter called the Independent) and the circumstances surround-
ing the signing of a contract with the Independent on January 10,
1964, Respondent interfered with the administration of the Inde-
pendent in violation of Section 8(a) (2) and (1) of the Act. He
failed to find, however, that these actions of Respondent evidenced
domination of the Independent, The General Counsel and Charging
Union contend in their exceptions that Respondent's conduct
amounted to actual domination of the Independent, that certain
other conduct alleged in the complaint should have been found vio-
lative of Section 8(a) (2) and (1), and that Respondent should be
ordered to disestablish the Independent or, in the alternative, to
vacate the January 10, 1964, contract, and withdraw and withhold
recognition until and unless the Independent is certified by the
Board. We find merit in these contentions.
The Respondent's domination of the administration of the Inde-
pendent is most clearly pointed up by the events surrounding the
signing of a collective-bargaining contract between Respondent and
the Independent on January 10, 1964. These events, as fully
described by the Trial Examiner in section III, A, 3 of his Decision,
particularly when set in the context of a substantial claim of repre-
sentation made that very day by the Charging Union, are sufficient
to sustain a holding that Respondent dominated the Independent as
of that date, and we so find.
The participation of Respondent's Supervisors Carbone, Zinni, and
Pflugfelder in the affairs of the Independent further demonstrates
Respondent's control and domination of that labor organization.
From the duties of the above-named individuals and their overall
authority, as outlined in the Trial Examiner's Decision, we conclude,
contrary to the Trial Examiner, that they were not "minor, low
ranking supervisors." Only Manager Lombardi stood above these
supervisors in Respondent's hierarchy. The Trial Examiner's descrip-
tion of Zinni's authority over the kitchen staff of 25 to 30 employees
and Pfiugfelder's authority in the office, along with Carbone's stand-
ing as assistant to Lombardi, convinces us that they enjoyed signifi-
cant roles in Respondent's management of its business. The cases
cited by the Trial Examiner to support his conclusion that the partic-
ipation of these supervisors in the Independent's affairs is indicative
of interference rather than domination are distinguishable. Unlike
the cited cases, Respondent's supervisors in the instant case actively
participated in various union affairs and were union officers. Car-
bone, though no longer an officer, signed the January 10, 1964, con-
tract and acted on Respondent's behalf by forcing Julia Mazella, the
1568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
Independent's secretary-treasurer, to sign as well. Zinni took all,
active role in removing from the Independent's presidency- an em-
ployee whose ideas ran contrary to Respondent's and replacing her-
with another employee of his own choosing. Further; both Zinni
and Pflugfelder participated in the February 24, 1964, meeting of
the Independent's executive board with respect to the employment
status of Vera Seed, the circumstances of which are discussed below.
The active participation of these supervisors in the affairs of the-
Independent, and in a manner detrimental to the interests of its
employees, provides further compelling evidence that Respondent
unlawfully dominated the Independent.
Finally, we agree with the General Counsel and the Charging
Union that the acquiescence of the Independent's executive board
in the discharge of Vera Seed is an indication of Respondent's
domination over the Independent. The record reveals that Manager-
Lombardi called the executive board into his office on February 24,
1964, and advised them that he had received customer complaints,
against Vera Seed, former president of the Independent, and that
he would discharge her if she would not resign. Lombardi asked for
the executive board's recommendation and then left the room. Ac-
cording to then President Hollander, "We discussed it and they
thought-for the benefit of the company, they decided it would be
best for her to resign." [Emphasis supplied.] The board, with.
Zinni and Pflugfelder participating, then voted in favor of Seed's
resigning.'. Although Seed had told Hollander prior to the Febru-
ary 24 meeting that she expected Respondent to attempt to get rid'
of her, since she had been so outspoken on the Independent's behalf
in dealing with Respondent, no one on the board attempted to ascer-
tain Seed's version of the alleged incidents. In; this context, and,
noting the participation of Zinni and Pflugfelder in the February 24
meeting, as well as Hollander's testimony, we find' that the action
of the executive board on that date and its subsequent refusal to=
process Seed's grievance are further evidence of Respondent's domi-
nation over the Independent.
In view of our above findings, and our, conclusion, that the Inde-
pendent is a labor organization that has been dominated in its;
administration by Respondent, we shall order the Respondent to,
disestablish the Independent, to withdraw and withhold all recog-
nition from it, and to cease giving effect to; the January 10, 1964,,
1 Seed refused to resign and was discharged 4 days later. The executive board there-
after refused to process her grievance in which she sought reinstatement and backpay,-
replying that she had been ' discharged for cause . Seed's 8 ( a) (3) charge was withdrawn
pursuant to a settlement with Respondent under which , she was granted backpay and,
pension, benefits and offered reinstatement , the last of which she refused
KUGLER'S RESTAURANT, INC. 1569
contract. Nothing herein, however, shall be deemed to require the
Respondent to vary those wages, hours of employment, rates of pay,
seniority, or other substantive provisions in its relations with its
employees which it has established in the performance of said agree-
ment, or to prejudice the assertion by its employees of any rights
that they may have thereunder. We shall further require Respond-
ent to reimburse all employees for any amounts paid to the Inde-
pendent as dues or initiation fees since January 10, 1964.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
Respondent, Kugler's Restaurant, Inc., its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Dominating Kugler's Employees Union (Independent), or
any other labor organization of its employees, and from giving effect
to the contract with Kugler's Employees Union (Independent), dated
January 10, 1964, or any renewal or supplement thereof; provided,
however, that nothing herein shall be construed to require the Re-
spondent to vary any substantive provision of such agreement, or to
prejudice the assertion by the employees of any rights they may have
thereunder.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist the Philadelphia Local
Joint Executive Board, Hotel & Restaurant Employees & Bartenders
International Union, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing,
or to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organiza-
tion as a condition of employment as authorized in Section 8 (a) (3)
of the Act, as amended.
2. Take the following affirmative action which we find will ef-
fectuate the purposes of the Act :
(a) Withdraw and withhold all recognition from, and completely
disestablish, Kugler's Employees Union (Independent), or any suc-
cessor thereto, as bargaining representative of its employees.
(b) Reimburse all employees for any amounts of money they
may have paid to Kugler's Employees Union (Independent), as
dues or initiation fees since January 10, 1964, such payments to
783-133-66-vol. 151-100
1570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
include interest at the rate of 6 percent per annum, as in Sea-
farers International Union of North America, Great Lakes District,
AFL-CIO. 138 NLRB 1142.
(c) Post at its premises in Philadelphia, Pennsylvania, copies
of the attached notice marked "Appendix A." 2 Copies of said
notice, to be furnished by the Regional Director for Region 4,
shall after being duly signed by an authorized representative of the
Respondent, be posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to its employees are
customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken
to comply herewith.
IT IS FURTHER ORDERED that the complaint herein be, and it hereby
is, dismissed insofar as it alleges violations of the Act not found in
this Decision and Order.
2 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decsion and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL permanently withdraw and withhold all recogni-
tion from Kugler's Employees Union (Independent), or any
successor thereof, and completely disestablish it as the bargain-
ing representative of our employees.
WE WILL reimburse all employees for any amounts of money
they may have paid to Kugler's Employees Union (Inde-
pendent), as dues or initiation fees since January 10, 1964,
with interest at the rate of 6 percent per annum.
WE WILL NOT dominate Kugler's Employees Union (Inde-
pendent), or any other labor organization of our employees,
and will not give any effect to the contract with that Union
dated January 10, 1964, or any renewal or supplement thereof;
provided, however, that nothing herein shall be construed as
requiring us to vary any substantive provision of such agree-
ment, or to prejudice the assertion by our employees of any
rights they may have thereunder.
KUGLER'S RESTAURANT, INC. 1571
WE WILL NOT in any like or related manner restrain or
coerce our employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist the
Philadelphia Local Joint Executive Board, Hotel & Restaurant
Employees & Bartenders International Union, AFL-CIO, or
any other labor organization, to bargain collectively through
representatives of their own choosing, or to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all
such activities, except to the extent that such rights may be
affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8(a) (3) of the Act, as amended.
KUGLER'S RESTAURANT, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 1700 Bankers Securities Building, Walnut and Juniper
Streets, Philadelphia, Pennsylvania, Telephone No. 735-2612, if
they have any questions concerning this notice or compliance with
its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on March 12, 1964, by Philadelphia Local Joint Executive
Board, Hotel & Restaurant Employees & Bartenders International Union, AFL-CIO,
herein called the Charging Party or Outside Union, the General Counsel of the
National Labor Relations Board, by the Regional Director for Region 4 (Philadelphia,
Pennsylvania), issued his complaint, dated July 30, 1964, and amendment to com-
plaint, dated September 22, 1964, against Kugler's Restaurant, Inc., herein called
the Respondent. With respect to the unfair labor practices, the complaint alleges, in
substance, that: (1) Respondent, by certain specified acts and conduct, rendered
unlawful assistance and support to, and dominated and interfered with the formation
or administration of, Kugler's Employees Union (Independent),i herein called the
Independent; (2) Respondent's Manager Anthony Lombardi engaged in specified acts
of interference, restraint, and coercion; and (3) by the foregoing conduct, Respondent
violated Sections 8(a) (1) and (2) and 2(6) and (7) of the National Labor Relations
Act,' as amended, herein called the Act. In its duly filed answer, Respondent denies
all unfair labor practice allegations. The Independent filed no response.
Pursuant to due notice, a hearing was held before Trial Examiner Louis Libbin at
Philadelphia, Pennsylvania, on October 5 through 7, 1964. All parties appeared
at the hearing and were given full opportunity to examine and cross-examine wit-
nesses, to introduce relevant evidence, and to file briefs. Respondent's motion to
I The complaint was amended at the hearing, without objection, to add this name to
the caption. Benjamin Hollander, president of the Independent, admitted that he received
copies of the complaint and amended complaint I informed Hollander that he, or any
other representative, was entitled to represent the Independent in the instant proceeding
and he acknowledged that he was aware of such right.
1572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dismiss all allegations in the complaint , made at the close of the hearing and upon
which I reserved ruling, is hereby granted in part and denied in part, in accordance
with the findings and conclusions hereinafter made. By November 27, 1964, all
parties filed briefs,2 which I have fully considered.
Upon the entire record 3 in the case , and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a Pennsylvania corporation , maintains its principal office and place
of business in Philadelphia , Pennsylvania , where it is engaged in the retail restaurant
business . During the year preceding the issuance of the complaint , Respondent had
a gross volume of business in excess of $500,000 ; during the same period, Respondent
received at its place of business goods valued in excess of $5,000, which were shipped
directly from points outside the Commonwealth of Pennsylvania.
Upon the above-admitted facts, I find, as Respondent admits in its answer, that
Respondent is engaged in commerce within the meaning of Section 2 ( 6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find, that Philadelphia Local Joint
Executive Board, Hotel & Restaurant Employees & Bartenders International Union,
AFL-CIO, herein called the Charging or Outside Union, and Kugler's Employees
Union ( Independent ), herein called the Independent , are each labor organizations
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The allegations with respect to the Independent
Kugler's Employees Union (Independent), herein called the Independent, was
certified by the Board in September 1962 as the collective-bargaining representative
of Respondent's employees. All conduct relied on by the General Counsel as con-
stituting a violation of the Act occurred after the Independent's certification .4 The
General Counsel contends in his brief, and the Respondent denies, that Respondent
dominated and interfered with the administration of the Independent and rendered
unlawful support and assistance to it in the following specific respects: (1) by the
participation of supervisors as officers; (2) by permitting the use of its facilities and
the conduct of meetings on Respondent's premises without loss of pay; (3) by the
manner in which a contract was executed on January 10, 1964; and (4) by the
Independent 's acquiescence in the Respondent 's discharge of an employee. I will
now treat with these contentions , seriatim.
1. Supervisory participation in the Independent 5
The individuals involved are Anthony Carbone, Anthony Zinni, and Ruth Pflug-
felder. Respondent denies that these three persons were supervisors within the mean-
ing of the Act at any material time herein. Thus this issue must first be resolved
before reaching the matter of their participation in the affairs of the Independent.
(a) Their supervisory status
Respondent occupies space on two floors, has a dining room, nine banquet rooms,
a kitchen, a bar, and several office locations. It employs about 19 waitresses, up to
37 people in the kitchen in various categories , up to 50 banquet waiters, depending
on the size of the banquet, 1 banquet manager, 2 bartenders , 1 timekeeper, and 5
office workers. Respondent contends that its general manager, Anthony Lombardi,
is the only supervisor in its employ. -
-The Independent filed a letter with an attached photostatic copy of a petition contain.
ing 49 names of employees I advised the Independent that I would consider these
documents as being in the nature of a brief
3I hereby note and correct the obvious errors in the type\rritten transcript of testimony
d I will accordingly recommend dismissal of the complaint insofar as it alleges that
Respondent supported, dominated, and Interfered with the formation of the Independent
a Unless otherwise indicated, the factual findings in this, section are based on credited
testimony which is either admitted or undenied
KUGLER'S RESTAURANT, INC. 1573
Anthony Carbone was employed by Respondent as a steward and manager-trainee
for about 21/2 years prior to resigning on January 18, 1964. He acted as an assistant
to Manager Lombardi. He did all the purchasing, all the receiving , helped serve
banquets, and performed various other tasks. Carbone spent about 1 or 2 hours a
week in one of Lombardi's offices, performing paperwork, and, like Lombardi,
would also engage in some physical work. Within certain prescribed limits, Carbone
used his own judgment in making purchases. When Respondent needed dishwasher
help, Lombardi would inform Carbone who, in turn, would call the State unemploy-
ment office for employees. The applicant would report to Carbone, who would put
him to work without further consultation with, or approval by, Lombardi. This
happened quite frequently because of the rapid turnover among dishwasher personnel.
Carbone made minor decisions concerning complaints on meals and "things of that
nature." He worked "mostly with the kitchen" and was "in direct contact for the
major part of the day with the vegetable man downstairs" and "the people in the bake-
shop." If a man worked "a little slow," Carbone might tell him, "You will have to
move a little faster," or he might show him an easier way to do the job, if he knew
one. If a man was drunk on the job, or insulted Carbone, or would not work,
Carbone would report it to Lombardi. When Lombardi was on vacation, Carbone
assumed most of his work, as he also did when Lombardi was there. Carbone had
no set hours and his pattern of work was determined by the trend of business. He
used his own discretion in determining when to come in and when to leave. He did
not punch a timeclock and was paid a weekly salary.
Anthony Zinni has been employed by Respondent for 22 years. Until February 3,
1964, he was a fry cook at $1.46 per hour and was required to punch a timeclock.
Beginning with that date, he was employed as the chef at a salary of $100 per week
and was no longer required to punch a timeclock. As chef, he sees that the food is
properly prepared and laid out on trays; in the case of customer complaints, he
insures that adjustments are made. Zinni tells the approximately 25 to 30 kitchen
employees what to do. When kitchen help want time off, they go to Zinni to get
permission and he makes the arrangements for their replacements. In answer to a
question by Respondent's counsel as to who was Zinni's "boss" or "immediate
superior" when he was employed as a fry cook, Zinni testified, "The chef at that time."
Zinni further testified that Manager Lombardi does not come into the kitchen very
often because "he (Lombardi) usually has his diding room to take care of and busi-
ness coming in."
Ruth Pflugfelder has been employed by Respondent for 61/2 years. She takes
care of the office work and does all the bookkeeping. There are four other employees
in the office. In February 1964, Pflugfelder interviewed an applicant for the position
of payroll clerk. Based on Pflugfelder's recommendation, Lombardi hired this appli-
cant without first seeing or talking to her himself. Lombardi saw this girl for the
first time several days after she was already employed. At the instant hearing,
Pflugfelder referred to this girl as "my payroll clerk." Whenever the payroll clerk
finishes her routine duties, Pflugfelder will assign further work to her. When asked
by Respondent's counsel if she had any authority to assign an employee to a specific
job, she testified, "not except within my own department." She then explained that
if I have other work for the girls to do, I would give them that." Her immediate
superior is Manager Lombardi. However, "there are days when he doesn't even come
in" her office.
Conclusions
Upon consideration of the above, and the entire record as a whole, and in view of
the fact that acceptance of Respondent's contention that Lombardi is the only super-
visor would establish an unusually low ratio of supervisors to employees, I am con-
vinced and find that Carbone, Zinni, and Pflugfelder possessed the authority which
constituted them supervisors within the meaning of Section 2(11) of the Act.6
(b) Their participation in the Independent
All officers were members of the executive board of the Independent.
Carbone was president of the Independent from about October 1962 until he
resigned at the end of September 1963. He was on the negotiating committee which
participated in contract negotiations with Respondent. On January 10, 1964, when
O The Interstate Company, 118 NLRB 746, 748; Tide Water Associated Oil Company,
101 NLRB 570 , 574-575, 576; and Winn -Dixie Stores, Inc., and its subsidiary Winn-Dixie
Greenville, Inc., 124 NLRB 908, 912.
1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carbone was no longer president , he nevertheless signed the contract between
Respondent and the Independent as president of the Independent, as hereinafter
more specifically detailed. After signing the contract , he then summoned Julia
Mazella, the then secretary -treasurer of the Independent , and told her that manage-
ment would like her to sign the contract . When Mazella demurred that she was
responsible for the contract and for the employees , Carbone replied , "No use arguing
the point , Julia. Just sign it because that is just what they want. " Mazella thereupon
went to the office where she signed the contract.
Zinni was a trustee for the Independent from about October 1962 until April 29,
1964, when he resigned in accordance with a unilateral agreement which was signed
by Respondent . On February 3, 1964, Zinni became a chef , a supervisor within the
meaning of the Act , as previously found. He attended the Independent 's meetings
and voted on the Independent 's affairs while occupying his supervisory position.
Toward the end of February 1964, Zinm approached Ben Hollander , one of Respond-
ent's waiters , and asked him if he would accept the position of president of the
:Independent , a position to which Vera Seed, a waitress , had been elected only 2
months earlier and which she had not voluntarily relinquished Hollander accepted,
and within a few days became president , a position which he was still occupying at
the time of the instant hearing During the preceding month, Zmni and another
member of the executive board had also asked Ruth Pflugfelder if she would take the
position of secretary -treasurer When she agreed , she became secretary -treasurer.
Pflugfelder was a member of the Independent from about October 1962. She
attended the Independent 's meetings and voted on the Independent 's affairs Toward
the end of January 1964 , when Julia Mazella, the then secretary -treasurer , had volun-
tarily quit her employment , Tony Zinni and another member of the executive board
asked Pflugfelder if she would take the position of secretary -treasurer She agreed
and from that time until April 29 , 1964, she acted in that capacity . She resigned
her position in accordance with the unilateral settlement previously mentioned.
(c) Concluding findings
It is the General Counsel's contention that the participation of these supervisors,
as officers , in the affairs of the Independent in the manner previously detailed proves
that Respondent unlawfully dominated and interfered with the administration of the
Independent 's affairs. I agree that such conduct constitutes unlawful interference, but
not domination.8
All three were minor , low-ranking supervisors There is no evidence that Respond-
ent was in any way responsible for their appointment as officers or for Carbone's
appointment to the negotiating committee. Zinni and Pflugfelder held office for only
a few months while occupying a supervisory position . As for Carbone , there is no
evidence as to the size of the negotiating committee , as to how negotiations were
conducted , or as to the extent of Carbone 's participation in these negotiations The
record does show that the Independent had an attorney, Seidman, who drafted its
contract proposals and participated in the negotiations Moreover, pursuant to a
unilateral settlement, to which the Charging Union was not a party , Respondent
posted a notice on its bulletin board about April 27, 1964, to the effect that it would
not interfere with the administration of the Independent by permitting supervisors to
participate in its internal affairs or to hold office , and that it would not bargain or
process grievances wih any Independent committee which includes Pflugfelder, Zinni,
or any other supervisor in its membership.
Upon consideration of all the foregoing , and the entire record as a whole, I am
convinced that the record does not warrant a finding that Respondent dominated the
administration of the Independent through the participation of these three supervisors
in the affairs of the Independent . I do find, however , that by the above-described
7At a meeting of the Independent , Zinni said, "We ate here now to elect new officers."
Vera Seed thereupon stated that she was the president and had not resigned Zinni
retorted that they were not there to hear what she had to say Nominations were then
made Sally Mitchell and Seed were nominated for president; and Ben Hollander and
Ruth Pflugfelder were nominated for secretary -treasurer That evening an announce-
ment was put on the bulletin board to the effect that Sally :Mitchell was the new presi-
dent Within a few days Mitchell resigned , and it was then that Zinni approached
Hollander about accepting the position of president
$See, eg, Nassau and Snffo7k Contiactors' Association , Inc, and its neembers, 118
NLRB 174 , 183-185, 187
KUGLER'S RESTAURANT, INC. 1575
conduct of Carbone , Zinni, and Pflugfelder , while occupying the position of a super-
visor, Respondent interfered with the administration of the Independent in violation
of Section 8(a) (2) and ( 1) of the Act
2. Use of Respondent 's facilities and premises
The complaint , as amended , alleges, that "on three separate occasions in the
months of December 1963 and January 1964, Respondent permitted the Independent
to conduct meetings on Respondent 's premises and permitted Respondent 's kitchen
employees to attend said meetings without loss of pay ." Manager Lombardi admitted
that this did in fact happen He credibly testified , without contradiction , that Presi-
dent Carbone had asked permission to hold the Independent 's meetings on the
premises ; that he granted such permission inasmuch as Karloff, one of Respondent's
owners, had on a prior occasion loaned a room to the AFL -CIO to come in and talk
to the employees ; that besides the main dining room, there are nine rooms which are
generally unoccupied during the afternoon ; that these meetings were held in one of
these unoccupied rooms during a shift change about 3 p m ., when there are generally
no customers on the premises . The record also shows , without contradiction, that
when Julia Mazella was secretary -treasurer of the Independent , she kept the Union's
books and deposits in Respondent's safe cabinet in the office.
Considering the nature of Respondent 's business and the circumstances under
which the above conduct occurred , I find that the foregoing assistance was so minimal
as to be classed in the nature of permissible cooperation extended to the Independent
rather than unlawfull assistance and support violative of the Act 10
3. Respondent 's conduct with respect to the execution of the contract
(a) The facts 11
About a month after the Independent was certified , its newly elected officials met
with Respondent to discuss contract terms. The Independent presented Respondent
with a proposed draft contract . After about two meetings , Respondent returned to
the Independent 's officials their original draft contract with inked erasures and addi-
tions, which constituted Respondent 's counterproposals The Independent 's officers
took these counterproposals before the membership at a meeting of the Independent,
and explained what items the Respondent was willing to give in a contract. Julia
Mazella, secretary -treasurer of the Independent , told the membership that any time
any of them wanted to look at the contract , it would be on her desk.
Nothing further happened in regard to the contract until December 1963. Employ-
ees kept asking Mazella why the contract was not signed In November 1963
Mazella was absent because of illness. At a meeting of the Independent on Decem-
ber 23, 1963 , Attorney Seidman, counsel for the Independent , told the membership
that the contract was not signed , and advised that they had no contract . The mem-
bership thereupon voiced the view that they wanted a new contract At the con-
clusion of the meeting , Mazella gave the contract , which she had kept in a desk or in
a file cabinet in the office , to Attorney Seidman
By letter dated December 23, 1963, which Respondent stipulated it received,
Attorney Seidman summarized the status of the negotiations , pointed out that no
contract had been signed between the parties , and requested immediate further nego-
tiations "so that agreement can be had and a signed contract entered into." 12
° Nassau and Suffolk Contractor s' Association , Inc, supra : Detroit Association of
Plumbing Contractors , 126 NLRB 1381 , 1383; Bottfield -Pefractories Co , et al , 127 NLRB
188, 191 , Geilich Tanning Company , 128 NLRB 501, 502
10 See , e g, H. Ii. Erikson and Erik E. Erikson , co-partners , d/b/a Detroit Plastics
Products Company, 114 NLRB 1014 , 1025 , Signal Oil and Gas Company , 131 NLRB 1427,
1431-1432 ; Matthews Drivurself Service, Inc, 133 NLRB 1513 , 1521-1522 , Manuela
Manufacturing Co., Inc , 143 NLRB 379 , Coamo Knitting Mills , Inc, 150 NLRB 579
11 Unless otherwise indicated , the findings in this section are based on credited testi-
mony and exhibits which are either admitted or undenied
12 The relevant portions of the letter are as follows
On behalf of Kugler's Employees Union , I hereby request the immediate beginning
of negotiations on the terms and conditions of a collective bargaining contract
You will recall that sometime ago the Union submitted a form of contract proposal
to the company . Thereafter a meeting was held in which the company made certain
counterproposals rejecting substantial part of the Union's economic proposals As
.a. result of this impasse, no contract was ever signed by and between the parties
The Union now requests that further negotiations at this time so that agreement
can be had and a signed contract entered into
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mazella received a copy of this letter and posted it on the company bulletin board.
Still under pressure from the membership with respect to the execution of a contract,
Mazella scheduled a membership meeting for 3 p.m., on January 10, 1964. At the
same time, she informed the Karloffs , who were officers of Respondent , and Manager
Lombardi that the employees wanted a new contract, and invited them to attend the
Independent 's meeting.
On January 10, 1964, the day of the scheduled membership meeting of the Inde-
pendent, Respondent received a letter from the Charging Union, advising that a
majority of Respondent's employees had designated it as their collective-bargaining
representative and requesting a meeting at a mutually satisfactory time and place.
Prior to the opening of the membership meeting on that date, Manager Lombardi
called Carbone into Karloff's office. At that time Carbone was no longer president
of the Independent, having been succeeded by Vera Seed, a waitress. Either Karloff
or Lombardi asked Carbone why the contract had not been signed. Carbone replied
that they had not got around to it. When he was asked if he was going to sign it,
Carbone replied, "I am not at liberty to sign it because I am no longer president ...
Vera Seed is now the president." Either Karloff or Lombardi told Carbone that
"you were president when it was negotiated and went into effect." Carbone then
stated that he would sign it if he could get the contract. Lombardi told him that
Seidman, the attorney for the Independent, had it. Carbone then went to Seidman's
office and picked up the contract. He brought it back to Lombardi and signed it in the
office. Carbone admitted that he was the first one who signed that contract and
that no other signatures were on the contract before he signed it.
After signing the contract, Carbone summoned Julia Mazella. He told her that
"they would like for you to sign the contract." When Mazella demurred that she
was responsible for the contract and for the employees and that she had given the
contract to the Independent's attorney, Carbone replied, "no use arguing the point,
Julia. Just sign it, because that is what they want." Mazella went into Karloff's
office where Karloff and Lombardi were present. Lombardi turned the contract to
the page to be signed and told Mazella, "don't ask questions. Just sign it." Mazella
complied and signed the contract without having a chance to read it. She was in the
office just long enough to sign the contract, a period of a few minutes.13 The contract
provides that it shall be in effect for a period of 3 years from January 1, 1963, with
a 60-day automatic annual renewal clause.
After the contract had been signed in the above-described manner, Lombardi, the
Karloff brothers, and Parsons, president of Respondent, all attended the Independent's
meeting scheduled for that time, having previously been invited by Mazella. Henry
Karloff called the meeting together and asked who was representing the employees.
Mazella replied that Vera Seed was the president of the Independent and represented
the employees. Vera Seed was then told to sit at the head of the table. Karloff
wanted to know what the employees were "so excited about," and announced that
the contract had been signed. Vera Seed replied that the contract had not been signed
"until five minutes ago" and that Julia Mazella was just made to sign the contract.
When Lombardi stated that it was not their fault and that Mazella had been out
sick and had the contract, Seed replied that Mazella was not sick for a year and that
they had the whole year to sign it. Karloff then stated that they really could not put
the blame on Julia Mazella, pointed out that regardless of what had happened the
contract was now signed, and expressed the view that it was a good contract for the
employees.14
The findings as to what tianspired when Mazella entered Karloff's office are based
on the credited testimony of Julia Mazella, who impressed me as a candid and truthful
witness Lombardi testified that he merely asked Mazella why the contract had not
been signed, that he did not instruct her to sign, and that Mazella looked at the contract
for about 20 or 25 minutes before she signed it. Upon my observation of the demeanor
of the witnesses while testifying under oath and Respondent's unexplained failure to call
Karloff, who was available, to corroborate Lombardi's version, I do not credit the testi-
mony of Lombardi to the extent that it conflicts with that of Mazella, as set forth in
the text
"The findings in this paragraph are based on the credited testimony of Vera Seed
and Julia Mazella. Lombardi, the only witness called by Respondent, denied that either
he or Karloff made any mention of the contract at this meeting. He testified that he
called this meeting and that Karloff merely informed the employees about Respondent's
business and economic conditions , the sole purpose for which the meeting was called.
Respondent ' s unexplained failure to call as witnesses the Karloff brothers and President
Parsons , although all were admittedly available , warrants the inference, which I herein
make, that their testimony would have been unfavorable to Respondent . Interstate Cir-
KUGLER'S RESTAURANT, INC. 1577
(b) Concluding findings
Respondent contends that the Company had signed the contract about March 1963,
and that it was only the signatures of the Independent which were affixed on Janu-
ary 10, 1964. Thus, Lombardi testified that after Respondent had made changes in the
draft contract presented by the Independent, he gave it to Karloff and Parsons who
signed it about March 1963 and turned it over to Julia Mazella, and that he (Lom-
bardi) did not see the draft again until January 10, 1964. In further support of its
position, Respondent also offered into evidence a copy of a contract, containing only
signatures of Respondent's officers. I do not credit Lombardi's testimony and reject
Respondent's contention in this respect.
The persons whose signatures appear on the contract are in the best position to
testify as to when they affixed their signatures. Thus again, I can only infer from
Respondent's unexplained failure to call as witnesses the Karloffs and Parsons, who
admittedly were available, that their testimony would have been unfavorable to
Respondent. In addition, Carbone credibly testified that he was the first one who
signed the contract and that the other signatures on the contract were not these before
he signed. Moreover, the contract put into evidence by Respondent as allegedly having
been signed by it in March 1963 differs in many respects from the one signed by the
parties on January 10, 1964 15 Furthermore, Respondent at no time took issue with
Attorney Seidman relative to the accuracy of his statement in this letter of Decem-
ber 23, 1963, that "no contract was ever signed by and between the parties" because of
the impasse between the parties and his request for further negotiations so that "a
signed contract [could be] entered into." Finally, at the meeting with the Independent
immediately after the signing of the contract on January 10, 1964, Respondent's
representatives made no claim that the contract had been signed by Respondent on a
prior occasion, as previously found. Upon consideration of all the foregoing, the
sequence of events, and the reasonable and noimal probabilities flowing from the
previously established facts, I find that Respondent did not execute the contract
until January 10, 1964.
The General Counsel contends that the circumstances suriounding the signing of
the contract by Carbone and Mazella on January 10, 1964, is indicative of Respond-
ent's domination over the Independent. While I am convinced that Respondent
directed and influenced them to sign the contract, such conduct falls short of domina-
tion. However, it is clear, and I find, that by its conduct with respect to the execution
of the contract on that date, Respondent interfered with the administration of the
Independent in violation of Section 8(a) (2) and (1) of the Act
4 Alleged Independent's acquiescence in discharge of Vera Seed
On February 24, 1964, Lombardi called the executive board of the Independent
into his office. The executive board consisted of President Hollander, Secretary-
treasurer Pflugfelder, Trustee Zinni, and two other employees. Lombardi told them
that he had received customer complaints against Vera Seed, that he wanted her to
resign, and that if she did not resign he would discharge her. Lombardi asked them
to discuss the matter and make a recommendation, stating that he preferred that she
resign so that she would not lose her pension. He then left the room. The members
of the executive board discussed the matter for about 15 or 20 minutes and decided
that, under all the circumstances, it would be best for her to resign. They then called
Lombardi back into the office and gave him the results of their meeting. At no time
did the Independent attempt to get in touch with Seed to get her version of the matter.
cunt, Inc v. US, 306 U.S. 208, 226; Marriello Fabrics, Inc and Michael Maiiiello, 149
NLRB 333 In view of the foregoing, the demeanor of the witnesses, and the fact that
Mazella and Seed testified with the detailed specificity which normally does not accom-
pany a fabrication, I do not credit the testimony of Lombardi to the extent that it con-
flicts with that of Diazella and Seed, as set forth in the text
15 The former is designated in the record as Respondent's Exhibit No. 3, while the latter
is General Counsel's Exhibit No 2. Thus Respondent's exhibit is signed by Henry Karloff,
while the General Counsel's exhibit is signed by Louis Iiarloff ; page 6 of the General
Counsel's exhibit has a change which is not reflected in Respondent's exhibit; and on the
last page of the General Counsel's exhibit there is the notation in Lombardi's handwriting,
"as per changes in the original contract signed by Kugler's Rest. Inc ," while no such
notation appears in Respondent's exhibit. Lombardi could not explain why General
Counsel's exhibit contains this reference to another contract. And there is no evidence
that any other contract had been signed between the two parties.
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seed refused to resign and was discharged on February 28 On March 3, 1964,
Seed sent a telegram to Independent Shop Steward Trucks, asking for reinstatement
to her original station, together with the backpay and tips which she lost. She received
a reply letter from Secretary-treasurer Pflugfelder, stating that she had been dis-
charged for cause. Thereafter, Respondent offered Seed reinstatement and payment
of backpay and tips, and her pension. By letter, dated April 29, 1964, she declined the
offer of reinstatement.
The General Counsel contends that the conduct of the Independent in acquiescing
in Seed's termination without first obtaining her version, and the failure to process
her grievance after her discharge, is an indicia of Respondent's domination over the
Independent. I do not agree that the above-described undisputed facts warrant such
a finding.
B Allegations with respect to interference, restraint, and co^-rcioii
The complaint alleges that Respondent violated Section 8(a) (1) of the Act by the
conduct of Manager Lombardi in warning (a) an officer of the Independent to keep
her ears open and her mouth shut, and (b) an employee of lob reprisals because of
employees' protected, concerted activities. The evidence with respect to these allega-
tions is as follows
1. As to allegation (a)
About 3 days after Vera Seed had been elected president of the Independent, she
was accused by Banquet Manager Geyer of being responsible for "a big heap of
ashes on the floor." She denied being responsible for it and an argument in regard
to this ensued. Lombardi was in the area at the time and asked Seed what the
excitement was all about. When Seed related Geyer's accusation, Lombardi replied
that his advice to her was that she would do good on this job if she kept her eyes open
and her mouth closed, and not to get ulcers from this job like Lombardi.
The foregoing reflects Vera Seed's testimony, which is not seriously disputed by
Lombardi. I find that Lombardi's statement, considered in the circumstances and
context in which it was made, was not violative of Section 8(a) (1) of the Act.
2. All to allegation (b)
Vera Seed testified that on one occasion while she was president she asked Lombardi
why he had discharged employee Wright, that Lombardi stated it was because she was
drinking a cup of soup on his time, and that "if there was no union in this house, I
would go out right now and fire these nine " Lombardi denied having made the
latter statement.
Vera Seed was a very voluble and rambling witness. The record demonstrates, to
my satisfaction, that she sometimes misunderstood what had been said to her and
that in other instances she testified to her impression of what was said rather than to
what was actually said. In addition, she impressed me as being hostile and antago-
nistic to Respondent because of her feeling that she had been unjustly discharged
I have previously credited her testimony only where it was undenied or was cor-
roborated by other credible testimony. Under all the circumstances, I do not credit
Seed's testimony that Lombardi volunteered the last statement.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V THE REMEDY
I have found that Respondent unlawfully interfered with the administration of the
Independent in violation of Section 8(a)(2) and (1) of the Act Although Carbone,
Pflugfelder, and Zinni, the specific supervisors involved, have long since resigned their
offices in the Independent and Carbone voluntarily quit his employment about a year
ago,16 I believe that a cease-and-desist order is necessary to insure against Respond-
ent's resumption of such and similar conduct. I will so recommend
10 In April 1964 Respondent also posted a notice to its employees, stating, among other
things, that it would not permit supervisors to hold office in the Independent and would
not conduct collective-bargaining negotiations or process grievances with any independent
committee which includes Pflugfelder, Zinni, or any other supervisor in its membership.
R. & R. SCREEN ENGRAVING, INC. 1579
However, under the circumstances of this case , I do not believe that it will effectuate
the policies of the Act to order Respondent either to withdraw and withhold recog-
nition from the Independent or to cease giving effect to the contract executed on
January 10 , 1964, unless , and until, the Independent shall be certified by the Board.
The Independent was certified by the Board in September 1962, after winning a valid
Board election . Supervisors were not officers of the Independent prior to its certifi-
cation; and there is no allegation or contention that Respondent engaged in any
unlawful conduct prior to that time . I have not found the Independent to be an
employer dominated or assisted labor organization ; nor has the General Counsel or
the complaint attacked the validity of the contract in any respect . There is no
probative evidence that the Independent is no longer the freely chosen majority
representative of the employees concerned , or that there is any genuine movement to
designate the Charging Union as their collective -bargaining representative . 17 More-
over, the record does not establish that the supervisors involved were acting in other
than their individual capacities as members of the Independent , or that Respondent
instigated their participation . In such a context , I deem the aforestated cease-and-
desist order sufficient to remedy the unfair labor practices found.18
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Independent and the Charging Union are each labor organizations within
the meaning of Section 2(5) of the Act.
3. By participating through its supervisors in such independent activities as holding
office and voting on the Independent 's matters by acquiescing in a supervisor 's partic-
ipation in contract negotiations on behalf of the Independent and by having him
sign the contract on behalf of the Independent , and by directing and influencing a
former president to sign the contract as president of the Independent, in the manner
previously detailed, Respondent has interfered with the administration of the Inde-
pendent in violation of Section 8(a) (2) and ( 1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices insofar as not
specifically found herein.
[Recommended Order omitted from publication.]
17 The General Counsel admitted that the Union ' s letter of January 10, 1964 , claiming
majority representation , was not offered as evidence of the truth of the statement con-
tained therein , nor could such a self-serving declaration by itself be regarded as any
probative evidence in this regard.
18 Geilich Tanning Company, 128 NLRB 501, 502 ; Employing Bricklayers ' Association
of Delaware Valley and Vicinity , 134 NLRB 1535 , 1537; Detroit Association of Plumbing
Contractors , 126 NLRB 1381 , 1384 ; Bottfield-Refractories Co., et al ., 127 NLRB 188, 191.
R. & R. Screen Engraving, Inc. and New England Joint Board,
Retail , Wholesale & Department Store Union , AFL-CIO. Case
No. 1-CA-4,594. April 13, 1965
DECISION AND ORDER
On January 8, 1965, Trial Examiner James 11. Constantine issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner 's Decision. The Trial Examiner also found that; the
151 NLRB No. 151.