Le Saint Jean Des Pres Restaurant

National Labor Relations Board - Board Decisions

Mar 31, 1986

279 N.L.R.B. 109 (N.L.R.B. 1986)

SAINT JEAN DES PRES RESTAURANT
Michiel's Inc., d/b/a Le Saint Jean Des Pres Res-
taurant and Hotel Employees and Restaurant
Emploees Union, Local 100 of New York, New
York and Vicinity, AFL-CIO and Rodica Mis-
chiu . Cases 2-CA-20611, 2-CA-20611-2, 2-
CA-20663, and 2-RC-19802
31 March 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 22 October 1985 Administrative Law Judge
Steven Davis issued the attached decision.' The
Respondent filed exceptions and a supporting brief,
the General Counsel filed cross-exceptions and a
supporting brief, the Respondent filed a memoran-
dum of law in opposition to the cross-exceptions of
the General Counsel, the General Counsel filed a
brief in support of parts of the administrative law
judge's decision, and the Petitioner submitted to
the Board the brief it previously had filed to the
administrative law judge.
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 exceptions2 and briefs and
has decided to affirm the judge's rulings, findings,
and conclusions3 and to adopt the recommended
Order as modified.4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Michiel's Inc., d/b/a Le Saint Jean Des
Pres Restaurant, New York, New York, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 1(d) and re-
letter the subsequent paragraph.
' In a 15 November 1985 erratum, the judge noted that the challenge
to the ballot of Lissa Dannow had been withdrawn by the Union prior to
the hearing The judge ordered that Dannow's ballot be opened and
counted
2 Chairman Dotson notes that the Respondent did not file exceptions
to the administrative law judge's conclusions that the Respondent violat-
ed the Act by (1) establishing new rules requiring all waiters to work at
least one lunch shift per week and discontinuing its policy of permitting
employees to have a free glass of beer or wine with their meals and (2)
threatening employees with discharge, plant closure, and other unspeci-
fied reprisals because of their support for the Union
2 In fn 2 of his decision, the judge inadvertently refers to par 7 of the
complaint, instead of par 7(a).
4 The fudge found that the Respondent violated Sec 8(a)(3) and (1) of
the Act by reducing the employees' benefits by denying them free beer
and wine with their lunches, a practice it had previously followed The
judge inadvertently failed to include this finding in the conclusions of
law, remedy, recommended Order, and notice
109
"(d) Changing its policy and denying employees
free beer and wine with their lunches because the
employees engaged in union activities."
2. Substitute the attached notice for that of the
administrative law judge.
IT IS FURTHER ORDERED that Case 2-RC-19802
be, and it is, severed from this consolidated com-
plaint and remanded to the Regional Director; and
that the ballots of Jean De Boysson and Lissa
Dannow be opened and counted by the Regional
Director in accordance with the Board's Rules and
Regulations and a revised tally of ballots be issued
and served on the parties. In the event the Petition-
er has received a majority of the valid ballots cast,
the Regional Director shall issue the appropriate
certification of representative. In the event the Pe-
titioner has not received a majority of the valid
ballots cast, it is ordered that the election conduct-
ed on 12 September 1984, be set aside, and the Re-
gional Director shall conduct a new election when,
in his discretion, a fair and free election can be
held.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discrimi-
nate against you because of your membership in or
activities in behalf of Hotel Employees and Restau-
rant Employees Union , Local 100 of New York,
New York, and Vicinity , AFL-CIO.
WE WILL NOT require you to work at least one
lunch shift per week because of your union activi-
ties.
WE WILL NOT announce a new rule whereby we
would thereafter dock your pay for being late to
work or inform you that you would lose pay for
being late to work to induce you not to support the
Union.
WE WILL NOT threaten to discharge you because
of your support for the Union.
WE WILL NOT threaten you with closure of our
facility or with discharge because of the Union or
the election.
WE WILL NOT change our policy and deny you
free beer and wine with their lunches because em-
ployees engage in union activities.
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Rodica Mischiu immediate and
full reinstatement to her former job or, if that job
279 NLRB No. 17
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no longer exists, to a substantially equivalent posi-
tion , without prejudice to her seniority or any
other rights or privileges previously enjoyed and
WE WILL make her whole for any loss of earnings
and other benefits resulting from her discharge, less
any net interim earnings , plus interest.
WE WILL notify Rodica Mischiu that we have
removed from our files any reference to her dis-
charge and that the discharge will not be used
against her in any way.
MICHIEL 'S INC ., D/B/A LE SAINT
JEAN DES PRES RESTAURANT
Leonard Grumbach, Esq., for the General Counsel.
Stephen G. Eisenberg and Jonathan Arfa, Esq. (Bernstein
& Arfa), of New York, New York, for Respondent
Employer.
Harold Ickes, Esq. (Suozzi, English & Klein, P. C.), of Min-
eola, New York , for the Charging Party Petitioner.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS , Administrative Law Judge . Pursuant
to a charge filed on 24 September 19841 by Hotel Em-
ployees and Restaurant Employees Union, Local 100 of
New York, New York and Vicinity, AFL-CIO (Union),
a complaint was issued by the Regional Director for
Region 2 on 8 November in Case 2 -CA-20611 against
Michiel 's Inc . d/b/a Le Saint Jean Des Pres Restaurant
(Respondent).
A further charge and a first amended charge in Case
2-CA-20611-2 were filed by the Union on 17 October
and 14 November , respectively , and on 16 October a
charge was filed in Case 2-CA-20663 by Rodica Mis-
chiu, an individual , against Respondent.
On 30 November an order consolidating cases, and
consolidated complaint was issued in Cases 2-CA-20611,
2-CA-20611 -2, and 2-CA-20663. The consolidated com-
plaint alleges , inter alia,2 that Respondent unlawfully (a)
announced a new rule whereby it would thereafter dock
the pay of its employees for being late to work ; (b) in-
formed an employee that he would lose pay for being 4
minutes late to work ; (c) directed its employees not to
associate with other employees to preclude discussion of
unionization ; (d) threatened its employees with (i) dis-
charge because of their support of the Union and if the
Union won the Board election and , later, because of the
result of the election , (ii) closure of its facility if the
Union won the election and if the employees voted for
the Union ; and, later, (e) because of the result of the
election reduced employee Daniel Elster 's shift schedule;
(f) assigned Elster to the "runner " position and waiter's
positions without the assistance of other employees,
i All dates herein are in 1984 unless otherwise set forth
2 At the hearing , the General Counsel conceded that no evidence was
adduced as to par 7 of the complaint , which alleged that Respondent in-
formed an employee of its desire to replace a prounion employee I shall
accordingly dismiss that allegation
thereby imposing more onerous and less desirable work-
ing conditions on him; (g) caused employees Elster, Gil-
bert Butcher , Andrew Maneval , Neil Sukoff, Isabelle Le
Monnier , Mischiu , and Jean De Boysson to earn less
income by hiring certain waiters , waitresses, and bartend-
ers and thereby reducing the shifts of such employees;
(h) scheduled employees Butcher , Maneval , Le Monnier,
and Mischiu for a day off on the date of the Board elec-
tion; (i) on 13 September required its employees Butcher
and Mischiu to work lunch shifts; (j) reduced its employ-
ees' benefits by discontinuing its policy of allowing them
to drink beer or wine as part of the meals provided with-
out charge to the employees ; and (k) discharged employ-
ees Mischiu and Sukoff.
Respondent 's answer denied the material allegations of
the complaint.
On 18 December, the Regional Director issued an
order consolidating cases and notice of hearing on objec-
tions and challenges which consolidated for hearing
Cases 2-CA-20611 , 2-CA-20611-2, and 2-CA-20663 on
which the complaint , discussed above , was issued, and
Case 2-RC-19802 which involves alleged objectionable
conduct essentially as follows: (a) the discharge of
Sukoff; (b) the hire of new employees which resulted in
substantially reducing the hours worked by certain exist-
ing employees who were active in the Union ; and (c) the
destruction of the laboratory conditions necessary for the
conduct of the election. The Regional Director conclud-
ed that the allegations set forth in the complaint in Case
2-CA-20611 were encompassed within the objections, al-
though not specifically alleged as objectionable. In addi-
tion, three challenged ballots are at issue : Matilda LIff,
challenged by the Union as a supervisor; Neil Sukoff,
challenged by the Respondent as not being employed
during the eligibility period; and Jean De Boysson, chal-
lenged by the Board agent on the ground that he was
not on the voter eligibility list.3
The objections and challenges were consolidated for
hearing , which was held before me on five consecutive
days in February 1985.
On the entire record , including my observation of the
demeanor of the witnesses , and after consideration of the
briefs filed by the General Counsel , the Respondent, and
the Union, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent , a New York corporation, having its office
and place of business in New York , New York , has been
engaged in the operation of a restaurant selling food and
beverages to the public. Annually, in the course and con-
The petition was filed by the Union on 2 August , a Stipulation for
Certification upon Consent Election was approved by the Regional Di-
rector on 20 August , and an election was held on 12 September in a unit
comprised of all full-time and regular part-time waiters, waitresses, and
buspersons , bartenders , cashiers, and hostesses employed by Respondent's
New York facility, excluding all other employees , and guards, profession-
al employees, and supervisors as defined in the Act The election resulted
in five votes for the Union , four votes against the Union , and four chal-
lenged ballots One of the challenges , the ballot of Lissa Dannow, was
withdrawn by the Union on 19 September
SAINT JEAN DES PRES RESTAURANT
duct of its business operations, Respondent derives gross
revenues in excess of $500,000, and also purchases goods
and supplies valued in excess of $5000 directly from sup-
pliers located outside the State of New York. Respond-
ent admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act, and that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
This case involves an attempt to organize the dining
room employees of a restaurant. It is alleged that certain
actions were taken by Respondent in response to the or-
ganizing campaign. Each complaint allegation will be
discussed separately.
Albert Michiel, the owner of the facility, is situated in
Belgium . He owns 12 restaurants in Europe, but the one
at issue is the only restaurant he owns in the United
States . Carolyn Van Antwerpen, the manager and admit-
ted supervisor of Respondent is in overall charge of the
restaurant. Bernard Truffier is the maitre d' and also an
admitted supervisor.
B. Reduction of Shifts Due to the Hire of Employees
The complaint alleges that commencing about 12
August, Respondent unlawfully caused employees Daniel
Elster, Gilbert Butcher, Andrew Maneval, Neil Sukoff,
Isabelle LeMonnier, Rodica Mischiu, and Jean De Boys-
son to earn less income by hiring certain waiters, wait-
resses , and bartenders, thereby reducing the shifts of the
original employees.
The theory of the allegation is that by hiring more em-
ployees than were needed, the current employees earned
lees income because their shifts were reduced.
The General Counsel identifies the new employees and
their dates of hire as:
Francois Reboyonne 13 August
Jean De Boysson 15 August
Redzep 16 August
David Pumo 20 August
Claude Defense 21 August
Gaetan Bejrave 6 September
and states that their hire was unwarranted based on the
numbers of waiters* employed and the restaurant 's sales
for the period involved. I disagree.
Respondent lost the services of six waiters during the
period when it was hiring the new personnel. The six
workers and their last date of employment are:5
Milton Elliott 19 July
Colin Campbell 28 July
Kawal Mago 12 August
Chin Lee 15 Augusts
* The term "waiter" in this decision will include "waitresses "
s The dates were obtained by noting the last tip sheet entry for the
employee and checking that against the last payroll sheet record for the
worker
6 Lee worked only 5 days
111
John Bourke 16 August
Philip Watson 7 September?
Respondent asks that I add Peter Gruen and Rodica
Mischiu to the workers who were replaced by the new
hires. I cannot do so because Gruen, who last worked 3
August, went on vacation and resumed work 4 Septem-
ber. Similarly, Mischiu last worked 28 June, and also re-
turned to work in early September. Thus, there was no
specific need to replace these two workers with perma-
nent employees during the summer vacation period. I
thus find that no new workers were hired because of the
vacations of Gruen and Mischiu.
An analysis of the departures and hirings shows that
on 13 August, when Reboyonne began work, three wait-
ers had left in a period of slightly more than 3 weeks.8
By 16 August, two more employees had left9 and two
were hired to replace them. 1 ° By 7 September, when
Watson was fired, three employees were hired."" Thus,
six employees left and six were hired to replace them.
An examination of the payroll records12 shows that
the following members of waiters and bartenders were
working at the restaurant on the week ending dates set
forth below, excluding Van Antwerpen, Truffier, Matil-
da Liff, cashier Lillian Preux, and hostess Martine
Martin.
23 June 11
30 June 10
7 July 10
14 July 10
21 July 9
28 July 9
4 August 8
11 August 8
11 August 10
18 August 11
(with the inclusion of De Boysson and Re-
boyonne who were working but not yet on the
payroll)
25 August" 13
(with the inclusion of Defense who was not yet
on the payroll. De Boysson was listed on this
payroll.)
1 September 12
7 Although Watson was fired after Bejrave was hired on 6 September,
it is likely that Truffier, who discharged Watson, had intended to termi-
nate him prior to 7 September and accordingly hired his friend, Bejrave
on 6 September knowing that he would fire Watson the next day.
8 They were Elliott, Campbell, and Mago on 19 and 28 July and 12
August, respectively
8 They were Lee and Bourke
10 They were De Boysson and Redzep
11 They were Pumo, Defense, and Bejrave
12 I recognize that the payroll records are not precisely accurate con-
cerning who worked at the restaurant because employees were not
always given timecards and were therefore not placed on the payroll
However, the payroll records provide a general measure of how many
employees were employed at the facility and I have indicated the inclu-
sion of employees at a particular week where the evidence shows he was
working but did not yet receive a timecard
13 From 25 August through 20 September I have added Defense and
Reboyonne, who were working at the restaurant but did not appear on
the paryoll until 27 September
112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 September14 13
15 September 13
22 September 12
29 September 12
6 October 13
13 October 12
20 October 11
27 October 11
3 November 8
10 November 8
Although there was some increase in the number of
waiters and bartenders employed during the weeks from
late June until late September , the increase was minimal.
Prior to the petition being filed on 2 August, the average
number of such workers from 23 June until 4 August
was 9-1/2. From 11 August to the election, which en-
compassed the week ending 15 September , the average
was 12.
The General Counsel must show a nexus between the
hirings of the new employees and discrimination against
the workers alleged in the complaint. He relies on the
testimony of Le Monnier, which I credit, that Truffier
told her that he would not hire Randy Miles, an Ameri-
can, because he wanted to have a European staff because
he does not trust Americans since they were more likely
to favor a union. Although five of the six workers hired
between 13 August and 6 September have European
names15 there is no evidence that they are European or
that they were hired for the purpose of increasing the
number of employees on the payroll so that the current
workers would have reduced earnings.
In fact , Respondent 's gross sales did increase in
August over July's receipts and that, combined with the
separation of employees, could have accounted for the
hirings. 16
The complaint alleges that the current employees'
shifts were reduced as a result of the hiring of the new
employees. In his brief, counsel for the General Counsel
retreats somewhat from that position and urges that I
find a violation in the reduction in the amount of hours
worked rather than the number of shifts worked. The
reason is obvious. The evidence 17 simply does not show
a lessening in the number of shifts worked" notwith-
standing the slight increase in the number of waiters em-
ployed.
Regarding the hours worked, using the chart, a com-
parison between the pre-13 August and post-13 August
period shows that the following employees worked these
14 From 8 September through 22 October, the last day he appears on
the tip sheets , I have added Bejrave, who never appeared on the payroll
sheets
15 Truffier stated that he thinks David Pumo is American
16 The gross receipts for June, July, August, and September were
$93,865, $75,582, $82,740, and $73,366, respectively
17 See chart for each worker
I s However, the shifts of Elster show a reduction of shifts from 7 25 to
5 45 after 13 August
11 The complaint alleges that commencing about 12 August, the named
employees earned less income because their shifts were reduced Gross
pay includes hourly wages earned and tips reported
average weekly hours, and earned the following average
weekly gross pay.19
Pre 13 August Post 13 August
Hours Pay Hours Pay
Elster 38 9 $250.96 26 6 $223.63
Butcher 32 2 193 69 26 3 235 62
Maneval 32 .7 208 70 34 8 285 75
Le Monnie 39.30 177 69 26 222 15
Mischiu 20 166 145 33
De Boysson 21 163 139 76
Thus, the evidence shows that, after 13 August, Elster
worked about 12 fewer hours and earned about $27 less
per week. As to Butcher and Le Monnier, although they
worked fewer hours after 13 August, they earned more
money. Maneval worked about 2 hours more per week
and earned more money after 13 August, which could be
explained by the fact that he threatened to quit if he did
not receive additional shifts, and he subsequently was
given more shifts.
In sum , I am unable to find that the General Counsel
has set forth a prima facie case of discrimination. First, it
has not been shown that the hire of additional personnel
was discriminatorily motivated, or that any reduction of
shifts has taken place for Butcher, Maneval, LeMonnier,
Mischiu, De Boysson, or Sukoff. As to Elster, a slight re-
duction is seen. Moreover, Butcher, Le Monnier, and
Maneval's post -13 August earnings-which is the heart
of the complaint allegation-actually increased. Elster
suffered a loss in shifts, hours, and earnings after 13
August but inasmuch as I cannot find that this decrease
was discriminatorily motivated due to the hire of certain
employees, I cannot find a violation. Wright Line, 251
NLRB 1083 (1980).
Even if a prima facie case was proven, Respondent has
met its burden by showing that the additional employees
hired were employed as replacements for departed work-
ers and that its sales actually increased in August necessi-
tating additional staffing.
The complaint also specifically alleges that in early
August Respondent reduced Elster's shift schedule from
eight shifts per week to six shifts per week.
Elster testified on direct examination that he usually
worked eight shifts per week However, on cross-exami-
nation, on being shown his timecards from June to early
September, he admitted being wrong about that. The
chart shows that Elster's shifts were reduced from an av-
erage of 7.25 hours per week before 13 August to 5.45
hours after that date. However, I am unable to conclude,
for the reasons set forth above, that the reduction of
shifts was discriminatorily motivated, especially when
compared with the other employees' shifts. I accordingly
will recommend dismissal of this allegation of the com-
plaint.
20 Mlschm was on vacation for most of this period
21 De Boysson' s hours are not available
Week
b
June July August September October
eginning
18 25 2 9 16 23 30 6 13 20 27 4 10 17 24 1 8 15 22 29
Elster
(a) Shifts 7 8 8 6 6 7 8 8 8 6 6 5 7 6 6 5 3 3 5
(b) Hours" 39-1/2 36 28-1/2 39-3/4 34 40 54 42-1/2 23-3/4 26-1/2 25-1/2 33-3/4 32-1/2 31-3/4 26-3/4 16-1/2 13-1/2 19-1/4
(c) Tips and
wages23 $21933 176 60 149 48 237.41 199 90 22 5 299 18 367 03 171 81 185.28 226 93 294 31 231 38 257 61 256 86 129 78 98 73 240.24
Butcher
(a) 5 5 5 4 4 5 5 5 5 4 4 3 4 5 5 4 4 5 5 5
(b) 33 32-1/2 29 26 35-3/4 35 33 33-1/4 30 19-1/2 25 20-3/4 31 27-1/4 24-1/4 22 30-1/4 30-1/2 30-1/4
(c) $16698 189 38 185 15 149 10 201 01 264 25 199 55 194 14 261 50 138 83 155 75 150 76 278 16 257 85 173 04 208 99 266 70 279 09 331 68 325 09
Maneval
(a) 7 6 5 3 5 5 5 3 3 4 4 5 5 5or6 6or7 7 3 4 6 7
(b) 46.00 35 30- 1/2 18 33-1/2 38 48 12-3/4 29-3/4 39-1/2 27-1 /4 42 42-1/2 49 35-1/4 17-1/2 28-3/4 32-1/4 38-3/4
(c) $235 . 58 197 25 156 68 94 30 203 73 270 30 232 10 70 96 203 91 245 83 19004 408 03 319 . 03 328 12 26084 236.13 252 56 338 79 36006
LeMonnier
(a) 7 7 4 7 4 6 5 5 5 4 5 7 6
(b) 37-1/2 20 26 36-1/4 26 32 27-1/2 36-3/4 21-1/4 28-1/2 20-1/2 22-1/4 23 27-1/4 22-1/2 18-1/2 23 36-3/4 32
(c) $219.13 110 169 60 233 19 184 10 195 20 132 . 63 366 . 36 156 94 192 98 177 18 154 29 147 05 18904 207 88 173 .48 200 .05 385 36 315 20
Mischiu
(a) 3 3 3 2 2
(b) 29 18 18-3/4 20-3/4 18-1/4 12 12-1/4
(c) $178 15 148 30 208.06 158 76 131.89 111 20 113 79
DeBoysson
(a) 4 5 3 5 4 5 3
(b) 14-3/4 20-3/4 14 24-3/4 21-1/4 27-3/4 9-1/4
(c) $10466 157.76 9090 203 16 159 94 185 .21 76.74
22 The hours worked sometimes differ between that set forth on the payroll record and the hours indicated on the time cards . I have used the hours set forth on the
payroll record
23 The tips set forth as reported are 80 % of the actual tips received.
114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Docking Employees' Pay for Lateness
The complaint alleges that about 7 August, Respond-
ent (a) announced a new rule whereby it would thereaf-
ter dock the pay of its employees for being late to work,
and (b) informed an employee that he would lose pay for
being 4 minutes late to work . Both actions were alleged-
ly taken to induce the employees not to support the
Union.
On 6 August employee Daniel Elster , who was due at
work at 6 p.m., reported at 6:04. Truffier told him that
he would be docked 15 minutes pay for his 4-minute
lateness and Truffier wrote "- 15 minutes" on his time-
card. Truffier also told Elster that it was restaurant
policy "from now on" that if an employee arrived late
he would be docked 15 minutes pay. That was the first
time that Elster had heard of such a policy. It does not
appear that Elster was in fact docked any pay for his
lateness, and he did not know of anyone at any time
being docked for lateness. However, Van Antwerpen tes-
tified that workers are docked if they are 1 hour late, but
not 4 minutes late.
It is clear that coming immediately after the filing of
the petition on 2 August, the announcement of this rule
change was designed to harass the employees, particular-
ly Elster, for his support of the Union. The union cam-
paign must have been the motivating factor behind Truf-
fier's announcement to Elster that thereafter employees
would be docked for lateness and that 15-minutes pay
would be deducted for his being 4 minutes late, because
no action had been taken prior to that time in response
to employees ' minor latenesses , as confirmed by Van
Antwerpen.
Respondent argues that inasmuch as the alleged rule
was announced but not implemented (Elster was not in
fact docked any pay for his lateness on 6 August), there
can be no violation. I disagree. Here the new rule was
effective, in the minds of the employees, when an-
nounced. Although there was no evidence that the rule
was enforced, it has not been rescinded, and therefore
could be implemented at any time.
I accordingly find that Truffier's announcement of a
new rule that employees would thereafter be docked for
being late to work, and his telling Elster that he would
lose pay for being 4 minutes late to work violate the Act
because they were done in retaliation for the Union's
filing of the petition and to induce the employees not to
support the Union. It was, accordingly, violative of the
Act.
D. Assignment of Elster to the "Runner" Position
The complaint alleges that about the week of 13
August , Respondent assigned Elster to cover both a
waiter's station and the "runner" position, without the
assistance of other waiters , thereby imposing more oner-
ous and less desirable working conditions on him, be-
cause he joined the Union , and in order to discourage
employees from engaging in union activities.
A runner is a waiter designated on each shift by a Re-
spondent official to take food from the kitchen to all the
customers in the restaurant . In addition , he is assigned to
a small station near the kitchen . According to Elster,
Truffier would often send another waiter to the runner's
station to assist at that station if he was busy . Elster
stated that on 17 August his station was "pretty busy,"
he had very little assistance there, and he worked very
hard , noting that , as a runner , he never had such little
help before. As the volume of customers subsided, Truf-
fier demanded that he get out of the kitchen, and threat-
ened that unless he had pressing business there he should
stay on the dining room floor and take care of his station
or he would be fired. Truffier also said that the next time
he saw Elster in the kitchen he would be discharged.
Elster did not respond to these remarks.
There is no evidence that Elster requested additional
help for his station or that Truffier refused to provide it.
When compared with the other Friday lunches in
August, it appears that 17 August had the highest
volume. This calculation is based on the total tip pool for
each lunch. The individual sales figures for each day are
not in evidence, so the total tips received are a rough but
fair estimate of the total sales volume for the day. The
total tips received in August are as follows:24
Date-Amount No. Working Waiters
8-3-$144 3
8-10 - $195 4
8-17 - $205 3
8-24 - $185 4
8-31 - $180 4
It thus appears that on 17 August Elster was assigned
as runner on the busiest Friday in August when only
three waiters were working, whereas for 3 of the 5
weeks, four waiters were employed. Accordingly, Elster
was indeed working hard that day. However, the issue is
whether Truffier improperly failed to assign another
waiter to assist him at his station. Inasmuch as only two
other waiters aside from Elster were working that day to
cover an extremely busy lunch shift, Truffier permissibly
did not assign another waiter to help Elster. There was
no evidence that Truffier always sent a waiter to help at
the runner's station, and he properly exercised his busi-
ness judgment in not doing so where the other two wait-
ers were needed at their stations. Indeed, if Truffier as-
signed a waiter to help Elster, only one waiter would be
left in the entire restaurant to take care of all the sta-
tions , excluding Elster 's small station.
I accordingly find no violation of the Act regarding
this complaint allegation.
E. Direction to Employees Not to Associate with
Others
The complaint alleges that in mid-August, Respondent
directed its employees not to associate with other em-
ployees to preclude discussion of unionization.
Employee Elster testified that in the past he was asked
by Truffier to "look after" new waiters-by correcting
their mistakes and observing them. The new workers
were assigned a station near his and he would watch
24 The total tips comprise all tips paid by customers as reflected in the
tip sheets A share of the total tips went to management personnel, but
the individual shares received are not material
SAINT JEAN DES PRES RESTAURANT
them, correct their mistakes, and brief them on restaurant
policies.
On 17 August waitress Isabelle LeMonnier brought
her friend , Randy Miles , to the restaurant as a trial
waiter for 1 night. Truffier asked LeMonnier to show
him around and asked that he "trail " her-assist and
follow her in serving customers. Prior to the start of the
shift, Miles, LeMonnier, and Elster ate dinner in the
kitchen and Elster was explaining restaurant procedure
to Miles . Truffier entered , apparently heard Elster, and
told LeMonnier that he asked her and not Elster to train
Miles.
I am unable to find a violation based on these facts.
Truffier did not, as alleged, direct the employees not to
associate with other employees. He merely told LeMon-
nier to train Miles. Although in the past Truffier had as-
signed Elster to watch and coach new waiters, he was
not given that task permanently. Truffier could, of
course , assign a different waiter to perform that job. Le-
Monnier and Elster had about the same amount of expe-
rience at the restaurant ' 25 and because LeMonnier
brought Miles in, it was understandable that Truffier
would appoint her to train him.
Moreover, Mischiu testified that on Laurent's first
night as a waiter, she was asked by Matilda Liff, who I
find to be a supervisor, to take care of his tables while he
was working because he did not perform well.
In addition, when Truffier interrupted Elster's conver-
sation with Miles, there was no discussion of the Union
ongoing at that time. I accordingly am unable to find
any violation of the Act in this regard.
F. Scheduling Employees for a Day Off on 12
September
The complaint alleges that Respondent violated Sec-
tion 8(a)(3) of the Act by scheduling employees Butcher,
LeMonnier , Maneval , and Mischiu for a day off on 12
September , the date of the Board election , to induce
them not to participate in the election.26
The restaurant is open 6 days per week and it is not
disputed that employees were given days off during the
week.
The General Counsel 's argument is based on the as-
sumption that 3 of the 10 persons who were assigned to
work that day could be expected to vote against the
Union (Dannow , who was Michiel 's babysitter in Bel-
gium ; Preux, a former roommate of Truffier; and
Redzep, the bartender who was alleged to have reported
a conversation by Mischiu , not involving the Union, to
Truffier. He also asserts that the fact that only those
three were set forth on the Excelsior list is proof that its
failure to schedule other employees was unlawfully moti-
vated.
Of the 11 weeks between 13 June and 12 September'27
the date of the election , the employees at issue did not
work on the following Wednesdays:
25 According to the tip sheets, Elster began work about 1 June, and
LeMonnier started about 20 June
25 The question of whether those workers could have voted or did
vote notwithstanding their not being scheduled to work that day is not at
issue
27 The restaurant was closed on 4 July
115
Butcher28 8-comprising 6-13, 20, and
27; 7-11; 8- 1, 8, and 29; 9-5
LeMonnier29 2-7-25; 8-8
Maneval 6-6-13 and 20; 7-11; 8-1,
Mischiu
8, and 15
Did not work on 6-6 or 13,
but worked 6-20, after
which took 2-month
vacation , returning Tuesday,
9-4. Did not work on
Wednesday, 9-5.
After the election, in the 5 weeks from 19 September
to 17 October, the employees did not work the following
Wednesdays:
Butcher 5
LeMonnier 2-9-19 and 26
Maneval 4-9-19; 10-3, 10, and 17
Mischiu 5
On this record it cannot be found that Respondent de-
liberately scheduled the four employees for a day off in
order to induce them not to participate in the election.
There was no evidence that they were told of any reason
why they were not scheduled to work 12 September.
Moreover, their work pattern demonstrates that they
were regularly assigned Wednesdays as a day off, prior
to and after the election. Thus, prior to the election,
Butcher, LeMonnier, and Maneval did not work 8, 2,
and 6 of the 11 prior Wednesdays, respectively , and Mis-
chiu did not work on 6 or 13 June prior to her vacation.
A similar record is seen after the election.
I therefore cannot find that a violation has been
proven on this allegation.
I note that the Board will set aside an election when
the voter had no opportunity to vote because he was as-
signed by the employer to be away from the plant in the
normal course of his duties for the employer. Glenn
McClendon Trucking Co., 255 NLRB 1304 (1981). How-
ever when the employee was prevented from voting by
personal activities unrelated to his job, no objectionable
conduct has been found in his failure to vote. Philips In-
dustries, 212 NLRB 529 (1974). Accordingly, applying
that reasoning, Respondent did nothing more than sched-
ule the four employees for a day off. He could not be
required to employ all his workers on election day just
so they would find it more convenient to vote. Inasmuch
as no objectionable conduct would be found if an em-
ployee fails to vote for reasons of his own, the higher
standard required for finding an unfair labor practice is
not established where an employer fails to schedule cer-
tain employees to work on election day.
I accordingly find no violation of the Act concerning
this complaint allegation.
G. Assignment of Lunch Shifts
The complaint alleges that about 13 September, Re-
spondent required employees Butcher and Mischiu to
work lunch shifts.
28 Butcher was hired on 7 June
29 LeMonnier was hired and first appears on the tip sheets on 20 June
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mischiu was hired in late June 1983 . Upon her hire she
told Respondent Official Boumal that she was available
for dinners only because she would be attending school
in September . This arrangement was agreed to and Mis-
chiu was not scheduled for any lunches . However, Mis-
chiu volunteered to and did work lunches that summer,
when Respondent was short of help , until she began
school full time in September 1983. Boumal 's successor,
Richard Weber, honored Mischiu 's arrangement when he
replaced Boumal in October 1983 and , accordingly, she
did not work lunch except during vacations and school
holidays . The procedure she followed was to tell Weber
that she had a school day off and ask whether he wanted
her to work lunch that day.
In September 1984 Mischiu's school schedule required
her to attend school 5 days per week . On 13 September,
the day after the election , Mischiu observed that Truffier
was "excited and furious" when he announced that
"from now on everybody has to work lunch . . . wheth-
er the union people like it or not ." That day she learned
that her schedule for the following week included lunch
on Thursday. She told Truffier that he knew she could
not work lunch . Truffier replied that he did not care.
She answered that she never worked lunch when she
was in school . He responded that she had to arrange her
schedule so that she could be available for one lunch per
week . She said that she could not do that and offered to
show her school schedule . Truffier said he did not care.
Thereafter , Mischiu was assigned to lunch shifts and in
most cases obtained a substitute for those shifts . Truffier
excused her from lunch duty if she was able to get a re-
placement.
Gilbert Butcher testified that on his hire in June 1984
he told Truffier that he could not work lunches because
he was attending school. Truffier agreed to have him
work dinners only. Occasionally, however , he would
substitute for another employee for lunch if he was asked
by the worker.
Butcher further stated that shortly after the election
Truffier told him that he must work lunch . Butcher pro-
tested that he was not able to do so because of his school
attendance . Truffier replied that everyone must work
one lunch per week . Thereafter , Butcher worked lunch
and missed school on those days . Butcher testified, and
the tip sheets confirm , that in the weeks of 6 August to
24 September Butcher worked no lunches , but beginning
the week of 1 October to 29 October he worked one
lunch per week.
Butcher quit in mid-November.
Elster , LeMonnier , and Maneval testified consistently
that prior to the election , employees were not required
to work lunch . Elster and Maneval further stated that
after the election Truffier announced that all waiters
must work lunch because he wanted to stop "favoritism"
and be more fair to all the workers.
Van Antwerpen testified that waiters were never re-
quired to work lunches and that policy has never
changed . She never heard Michiel require that waiters
must work lunches . 80 Truffier also implied that there
was no such rule mandating that waiters work lunch, be-
cause he stated that he tried to accommodate the work-
ers.
Lunch shifts conflicted with the school attendance of
Mischiu and Butcher and may have been avoided by
other waiters because the tips received in such shifts
were much less than the dinner shift . Nevertheless, the
evidence is clear that prior to the election , workers were
not required to work lunch , and Truffier permitted Mis-
chiu and Butcher to work dinners only.
Only 1 day after the election , Truffier announced a
change in this policy to require all waiters to work at
least one lunch shift per week "whether the union people
like it or not ." I credit the consistent, similar testimony
of Mischiu , Butcher, Elster , and Maneval that Truffier
told the waiters of this change . The fact that a new
policy was made is clearly demonstrated by (a) the pro-
tests by Mischiu and Butcher that they could not work
lunches due to their school schedules; (b) Mischiu's ef-
forts to obtain substitutes for assigned lunch shifts; and
(c) Butcher's record of no lunches prior to the change,
and one lunch per week after the change.
It is further clear that the new requirement that wait-
ers work one lunch per week was motivated by antiun-
ion considerations . The timing of the announcement,
coming only I day after the election and accompanied
by the statement that the change will be effective
"whether the union people like it or not" provides strong
evidence that the change was unlawfully motivated.
Moreover , Truffier knew that Mischiu and Butcher did
not want to work lunches and had previously accommo-
dated their school schedules.31
The announcement of the requirement that waiters
work at least one lunch was directed at all the employees
and was clearly unlawfully motivated , as set forth above.
Although it was unlawful concerning all the workers, it
was of course a violation concerning Mischiu and Butch-
er, who are specifically alleged in the complaint as
having been discriminated against by virtue of the new
shift schedule.
I accordingly find and conclude that the requirement
that employees work lunch shifts violated the Act.
Nissen Foods, 272 NLRB 371 (1984); Together We Stand
Women 's Guild, 256 NLRB 393, 397 -398 (1981).
H. Reduction of Benefits
The complaint alleges that about 20 September Re-
spondent reduced its employees ' benefits by discontinu-
ing its policy of allowing them to drink beer or wine as
part of the meals provided without charge , because of
their support for the Union and as a result of the Board
election.
Employees De Boysson , Elster, LeMonnier , Maneval,
and Mischiu consistently testified that , prior to the elec-
tion of 12 September , waiters were permitted to drink a
30 Therefore I reject Respondent 's argument, that inasmuch as Michiel
made schedule changes in October 1984 , such changes were not unlaw-
fully made
31 Truffier testified that he knew that Mlschtu and Butcher were stu-
dents and that he accommodated them by not having them work lunches
SAINT JEAN DES PRES RESTAURANT
glass of beer or wine with their meals without charge.
Shortly after the election, Truffier announced that em-
ployees were no longer permitted to drink alcoholic bev-
erages on the premises.
Van Antwerpen testified that when she began work
for Respondent in June 1983, she knew that Michiel's
other restaurants prohibited the consumption of alcohol
by waiters, and she believed that the same rule applied to
Respondent's premises here. Nevertheless, she was aware
that the waiters drank beer and wine with their meals
but she did not discipline them for doing so. In June or
July 1984, Michiel visited the restaurant, saw employees
drinking alcohol, became angry, and apparently told Van
Antwerpen that it should not be permitted. She believes
that Truffier told employes to discontinue this practice,
although she took no action against employees who con-
tinued to drink with meals after that, because she is not
"rigid" regarding this rule, and such drinking did not
affect the service of customers.
Based on these facts, it is readily apparent that Re-
spondent withdrew a benefit from employees because of
their support for the Union and because of the recently
held election. Thus, the waiters have enjoyed free beer
and wine with their meals for more than I year-since
the opening of the restaurant, notwithstanding Manager
Van Antwerpen's awareness that it was contrary to Re-
spondent's policies. Even the fact that Michiel ordered a
cessation of the practice in June or July 1984 did not
cause her to call a stop to it. It was only immediately
after the election that Truffier announced that alcohol
could not be consumed on the premises. The new rule
change withdrawing the benefit must therefore have
been a direct reaction to the union organizing drive and
the Board election. Sunbeam Corp., 211 NLRB 676
(1974).
Respondent defends itself on the ground that, accord-
ing to Van Antwerpen, employees continued to drink, as
they had in the past, after Truffier allegedly told them
the practice was discontinued. It relies on the testimony
of Maneval to show that employees drank in the restau-
rant after the rule change. However, Maneval stated
that, although the waiters persisted in drinking, they did
so secretly-not in the presence of Liff, Truffier, or Van
Antwerpen. Thus, although employees may continue to
dunk alcohol on the premises, the violation is in the an-
nouncement of the imposition of a new rule discontinu-
ing the benefit they once enjoyed. Scotch & Sirloin Res-
taurant, 269 NLRB 436, 443 (1984).
I accordingly find that the reduction of the employees'
benefits violated Section 8(a)(1) and (3) of the Act.
I. Threats to Employees
The complaint alleges that Respondent, by Truffier, its
admitted supervisor, (a) in mid-August, threatened its
employees with discharge because of their support for
the Union; (b) about 13 September, threatened its em-
ployees with closure of its facility and with discharge of
all the employees if the Union won the Board election;
(c) also threatened its employees with unspecified repris-
als because of their support for the Union; and (d) in the
week following 12 September, threatened its employees
117
with closure of its facility and with discharge of all the
employees because of the result of the Board election.
The complaint further alleges that in September, Re-
spondent , by Van Antwerpen, its admitted supervisor,
threatened employees with closure of its facility if the
employees voted for the Union.
LeMonnier testified that on asking Truffier if he
would hire her friend Miles , an American, who had tried
out as a waiter , Truffier replied that he would not be
hired because he wanted a European staff as he did not
trust Americans because they were more likely to be for
a union . He further said that he would also get rid of the
Europeans if necessary.
De Boysson testified that about 20 August he was told
by Truffier that he would hire 20 employes so that he
could fire certain workers, adding that that was his attor-
ney's idea . Two days before the election Truffier told De
Boysson that he did not like to be "fucked," adding that
if a person has to engage in that conduct it should be
consenting . Truffier then noted that "you are going to
see what's going to happen."
Maneval testified that shortly before the 12 September
election , Manager Van Antwerpen asked him what he
thought of the Union. Maneval replied that the workers
might receive benefits and protection. Van Antwerpen
responded that in her opinion they would not receive
such improvements, and it would cost a lot of money,
and, because Respondent is a small business , it might
have to close the restaurant.
Mischiu testified that on 13 September, the day after
the election, she was in the kitchen with Chef Pascal
when Truffier entered. Pascal remarked that it seemed
like the Union won. Truffier responded that "they won
my ass," adding that he had just spoken to Michiel and
that even if the Union won, Michiel said he would close
the restaurant, fire everyone, and in 2 weeks reopen
under a new name with new employees.
De Boysson testified that about 15 September he ap-
proached Truffier and told him that he was sorry that he
voted his conscience. Truffier replied that "we are going
to see what is going to happen."
Maneval stated that in the week following the election,
Truffier announced that the vote was tied and that he
would have to "go to court," adding that, at the worst,
the restaurant will close if the Union wins and might
reopen with other employees. Thereafter, Truffier re-
peated this message two to three times that week.
Truffier and Van Antwerpen denied or could not
recall making the statements attributed to them.
I find that the statements, set forth above, attributed to
Truffier and Van Antwerpen were made, as testified to
by the General Counsel's witnesses. They testified in a
consistent , forthright manner as to remarks which had to
have made a tremendous impression on them. In addi-
tion , certain of the same comments were made to differ-
ent people, which adds credence to the fact that they
were uttered.
I have already found that the assignment of Elster to
the runner's position on 17 August, and the alleged fail-
ure of Respondent to provide him with assistance did not
violate the Act. The threat by Truffier at that time that
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he would fire Elster if he did not stay out of the kitchen
was also not violative because Truffier had a legitimate
business interest in ensuring that the limited waiter staff
of three would be available to service the customers
during the high volume lunch shift . As the Board stated
in Gerber Co., 270 NLRB 1239 (1984):
Section 8(a)(1) of the Act prohibits employers
from interfering with , restraining, or coercing em-
ployees in the exercise of their rights of self organi-
zation as guaranteed by Section 7 of the Act. In
evaluating the conduct of an employer as to wheth-
er it violates the Act , the issue is whether the em-
ployer's conduct tended to affect the employees'
freedom of choice not whether such conduct, in
fact, did affect that choice.
The following are clearly unlawful threats:
(a) Truffier's remark to De Boysson that it was his at-
torney 's idea to hire 20 employees so that he could fire
certain workers. Respondent argues that because there
were not 20 employees affected by the Union 's petition,
such a statement could not be taken seriously . I disagree.
The tally of ballots show that there were 17 eligible em-
ployees, which is close enough to 20 to make it clear to
De Boysson that Truffier was threatening to discharge
the entire work force . Although De Boysson did not be-
lieve that his job was in jeopardy by virtue of this state-
ment , he stated that he interpreted the remark as being a
way in which Truffier could employ only those persons
he wished.
(b) Truffier 's statement to Mischiu on 13 September
and his remark to Maneval in the week after the election.
He told Mischiu that even if the Union won he would
close the restaurant , fire everyone , and reopen with new
employees. He told Maneval essentially the same thing.
(c) Van Antwerpen 's statement to Maneval that since
Respondent is a small business it might have to close.
(d) Truffier's statement to LeMonnier that Miles
would not be hired because Truffier wanted a European
staff as he did not trust Americans because they were
more likely to favor a union , was not an unlawful refusal
to hire Miles , in the absence of a charge to that effect.
Nor does the General Counsel request that I so find.
However , I find , as alleged by the General Counsel, that
that statement , coupled with Truffier 's further remark
that he would "also" get rid of the Europeans if neces-
sary is an unlawful threat to discharge employees.32
(e) Truffier 's statements to De Boysson that, "you are
going to see what is going to happen." This was said
right after Truffier mentioned that he does not like being
violated . As such, the comment was a clear threat of un-
specified reprisals.
I accordingly find and conclude that , based on the
statements of Truffier and Van Antwerpen , set forth
above, unlawful threats of discharge (Gerber Co., supra);
threats to close (Bronx Metal Polishing Co., 268 NLRB
887, 889 (1984)); ( Woodline, Inc., 233 NLRB 97, 100
32 I reject Respondent 's argument that this allegation must fail becasue
it hired David Pumo, an Amencan, about the same time It is not clear
that Pumo is Amencan Truffier stated that he thought he was an Ameri-
can
(1977)) and threats of unspecified reprisals were made to
employees . Economy Fire & Casualty Co., 264 NLRB 16,
22 (1982) ("It wouldn 't be in the company 's best interest
to move , but no one knows what will happen because
there 's never been a union.")
J. The Discharge of Neil Sukoff
1. Facts
The General Counsel alleges that on 22 August Re-
spondent discharged Sukoff because of his union activi-
ties.
Sukoff was interviewed by Truffier on 16 July. He ap-
plied for a job as a bartender and was asked if he had
bartending experience . He replied that he worked as a
bartender in London but had no experience serving
liquor . Truffier said he would train him.
Sukoff began work on 2 August, the day the petition
was filed . He was asked that night in the locker room by
Elster , who identified himself as the union representative,
to sign a card , and he did so . He worked for the first
three nights under the supervision of the bartender,
Gruen, who was leaving . He was also assisted for several
nights thereafter by two other workers.
After signing the card, Sukoff spoke to employees
Dannow , LeMonnier , Butcher, and Lopez mostly in the
kitchen about the Union . He told them that Elster spoke
to him, that he joined the Union , and he asked if they
were members also.
On 9 August , Truffier began criticizing Sukoff's work
in an angry manner, complaining about the following:33
(a) He used the wrong glass for a drink.
(b) A customer requested a certain champagne
and Sukoff did not know that it was kept in the re-
frigerator and thus could not find it.
(c) The sink clogged and overflowed-when
Truffier saw this he called Sukoff an "idiot" and
became insulting.
(d) Truffier claimed that a customer was waiting
20 minutes for a drink.
Sukoff conceded that the first three incidents occurred,
but denied the last.
On 15 August Sukoff spoke to Redzep behind the bar
regarding the Union . Sukoff told him that he was a
Union member and asked him to speak to "Union repre-
sentative Elster" if he wanted to join. Redzep did not
answer . That night , Truffier told Sukoff that he was a
terrible bartender who knows nothing about bartending,
citing the incident where the customer waited 20 minutes
for a drink. Truffier told Sukoff that he would be trans-
ferred to a waiter 's position . Sukoff protested that he
was a good bartender , but to no avail.
The following three nights, 16, 17, and 18 August,
Sukoff worked as a waiter , at first trailing a more experi-
enced waiter , then helping the waiter and taking drink
orders . He was told by Truffier what to do. On 20
33 Sukoff stated that Truffier's attitude toward him changed and that
in the couple of days prior to 9 August he would correct his work in a
"nice way "
SAINT JEAN DES PRES RESTAURANT
August a conference was held at the Board concerning
the petition. On 21 and 22 August Sukoff again worked
as a waiter.
On 23 August he reported to work but was told by
Truffier that there were too many waiters and not
enough reservations and was asked to leave. The follow-
ing day Sukoff reported to work and was told the same
thing by Truffier. Truffier also said that he would not be
needed during the next couple of days and that he
should- call the next week . Sukoff called and was told
that Respondent was not busy . He offered to work part
time and Truffier told him to call back in 2 weeks.
On 12 September, after he voted in the Board election,
Sukoff again told Truffier that he was available to work
part time, even in October. Truffier replied that he could
not think now, adding that there would be many changes
starting in October, and asked Sukoff to call him then.
Sukoff did not call Truffier again.
Sukoff kept his uniform in a locked locker in the res-
taurant which had his lock on it. Prior to the time he re-
moved his uniform and lock in October, no one had
asked him to do so.
Sukoff began receiving a full share of tips on his
second night of work as a bartender and he continued re-
ceiving a full share as a waiter. He stated that if he did
not know how to make a drink he would ask cashier
Preux or waiter Maneval or check his two reference
books. He added that in the last 4 days he worked as a
bartender he rarely had to ask others or consult the
books for drink-making instructions.
Truffier testified that Sukoff did not tell him that he
had no experience with alcoholic beverages, and that had
he known that he would not have hired him. He stated
that he helped Sukoff by showing him how to make each
drink and by answering his questions. He further stated
that he was able to tell on Sukoffs first day that he had
no experience, and that he told Sukoff during his employ
that he was not a good bartender, did not know how to
make drinks, and could not do anything well.
Notwithstanding that Truffier realized on Sukoffs first
day that he was incompetent, he gave him 1 week to im-
prove as a bartender, but he did not improve. Sukoff
asked for more time but Truffier refused to keep him as a
bartender, and offered him a waiter's position, which he
accepted. According to Truffier, many people helped
train him as a waiter but he was unable to do the job.
Truffier fired him at the end of the shift, telling him that
he did not do a good job at the bar or in the dining
room.
Truffier conceded that Sukoff's timecard indicates that
he worked a full dinner shift on 22 August and came in
for 1 hour on 23 August and was paid for that hour. He
did not recall telling Sukoff to go home because business
was slow. Thereafter, Sukoff called twice and asked him
if there was a job for him and Truffier said that there
was not.
Truffier denied firing Sukoff for his union activities
and denied any knowledge of his union activities.
2. Analysis and discussion
Truffier stated that he does not hire inexperienced per-
sonnel , but that he gives waiters and bartenders 2 days to
119
see if they would work out. Van Antwerpen testified
that inexperienced waiters are occasionally hired but are
trained in the restaurant.
The General Counsel argues that even if Sukoff was a
poor waiter, he was not given an adequate opportunity
to learn his job and improve his skills. He suggests that
disparate treatment was shown by the fact that, accord-
ing to Elster , new employees were assigned to a small
station for weeks or even months until they improved,
and that, although Sukoff was "rather inefficient," so
were other new employees who were retained for weeks
or months until they progressed.
There is no question but that by the time Sukoff was
fired on 23 August Respondent was aware that its em-
ployees were engaged in union organizing . The election
petition was filed on 2 August and a conference relating
to the petition was held at the Board on 20 August.
Thus, even apart from the small-plant doctrine urged by
the General Counsel, I find that Respondent possessed
knowledge of its employees' organizing activities gener-
ally.
However, there is no specific evidence to show that
Sukoff's activities were carried out at such places and
times that Respondent must have noticed them. Standard
Motor Products, 265 NLRB 482, 491 (1982). Sukoff dis-
cussed the Union in the kitchen and behind the bar with
fellow employees. Although such conversations included
Dannow, Lopez, and Redzep, I cannot find that employ-
ees informed Respondent of Sukoff's union activities or
were likely to have reported such matters to manage-
ment. Dr. Phillip Megdal, Inc., 267 NLRB 82 (1983). I am
aware that Dannow was a former babysitter of Michiel,
Respondent's owner; Lopez socialized with Van Antwer-
pen and Truffier; and Redzep possibly advised Truffier
that Mischiu was speaking against him.34
Moreover, no antiunion comments were addressed to
Sukoff by Respondent, and at the time of his discharge
no animus was displayed at all by the company toward
the Union. The absence of animus is evident in the fact
that Respondent could have discharged Sukoff on 15
August when it became dissatisfied with his bartending.
By that date, according to the General Counsel, Re-
spondent was aware of all his union activities through his
conversations with his coworkers whose loyalty and re-
lationship to the Company would have prompted them
to inform on Sukoff. The evidence reveals, however,
that Respondent did not discharge him on 15 August, but
gave him another opportunity to work for Respondent in
the capacity of waiter and continued his full share of
tips. 3 s
I am, accordingly, unable to find that the General
Counsel has made a prima facie showing that Sukoff's
protected activity was a motivating factor in Respond-
ent's decision to discharge him. Wright Line, 251 NLRB
1083 (1980).36
34 When Truffier criticized Mischiu for spreading rumors about him,
which information perhaps came from Redzep, he told her that there
were "informers all over the place" and that the "walls have ears"
35 No allegation has been made that Sukoff's transfer from bartender
to waiter was in violation of the Act
36 I reject the Union's argument that Sukoff was laid off The General
Counsel alleges that he was fired and the evidence so indicates.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If it is ultimately found that the General Counsel has
established a prima facie case, it is Respondent 's burden
to show that it would have taken the same action against
Sukoff in the absence of his union activities . Respond-
ent's defense is troublesome. Truffier's testimony that he
told Sukoff that he was fired for poor work at the end of
a shift was contradicted by Sukoff who stated that Truf-
fier told him at the start of a shift that he should leave
because business was slow . Truffier was also contradict-
ed by Sukoff s timecard which indicated that he began
his last shift but did not complete it , thus lending cre-
dence to Sukoffs version. Moreover, no specific evi-
dence of Sukoff's shortcomings as a waiter was presented
by Respondent. The only testimony from Truffier was
that Sukoff was unable to do the job and that many
people unsuccessfully helped to train him. s v
I find it unnecessary to resolve this conflict because, in
finding that no prima facie case has been proven, I need
not examine Respondent 's defense.
K. Discharge of Rodica Mischiu
1. Facts
The General Counsel alleges that Respondent dis-
charged Mischiu on 15 October because of her union ac-
tivities.
At the time of Mischiu's hire in June 1983 she advised
Manager Marion Boumal that she was available for din-
ners only because she would be attending school in Sep-
tember . Boumal agreed and asked how many dinner
shifts she wanted and Mischiu replied that she would
work as many as she was assigned . Thereafter, Mischiu
worked dinners only until July when she volunteered to
work lunches while she was on summer vacation from
school to which she returned full time in September
1983. Richard Weber, who replaced Boumal in October
1983, observed the schedule that Mischiu requested-din-
ners only, and when she was on school vacation or holi-
day, she would work lunches too.
In late June 1984, Mischiu and Elster spoke in the res-
taurant about the problems at Respondent: too many
waiters; inexperienced waiters; and Truffier and the cash-
ier received a full share of tips. Elster told Mischiu that
these matters would be resolved if they joined a union.
Mischiu asked how that would happen, and Elster ex-
plained that a union would not permit Truffier or the
cashier to receive a share of tips and the workers would
obtain health and dental insurance for $18 per month.
Mischiu told Elster that she would join a union if doing
so would solve their problems.
Mischiu went on vacation in late June and on her
return to work in early September 1984 was told by
Elster that he had organized a union and there was to be
an election on 12 September. Elster identified those
workers who he believed supported the Union. Mischiu
went to those employees and told them that she was
happy they supported the Union, and she also spoke
39 In this connection I cannot rely on the similarly vague and conclu-
sory testimony of the General Counsel 's witnesses Elster and Le Monnier
that other inefficient workers were allowed to remain in Respondent's
employ for weeks or months until they improved
about the Union with the workers who were undecided
about whether to join it.
In late September, Mischiu spoke with Elster, Butcher,
and Redzep concerning some tip money which was al-
legedly missing. After this conversation she saw Redzep
speak with Truffier. A few days later Truffier accused
her of spreading rumors that he and Preux were stealing
tip money. Mischiu asked him if he had evidence that
she was spreading rumors and asked that she be con-
fronted with her accuser. Truffier refused, adding that
his information is reliable because he had "informers all
over the place" and that the "walls have ears." Truffier
threatened that if he heard her spread rumors or if she
said anything about the tips he would fire her "no matter
what kind of lawsuit I'll get into with the Union."
On her return from vacation, Mischiu asked Truffier,
who had by then replaced Weber, for Monday night, 10
September, off because she had to register for school.98
Truffier agreed. Mischiu reported to work on Tuesday
night and saw that she had been scheduled to work the
night before. She asked Truffier why she had been
scheduled and was told that he forgot.
On 13 September, as discussed above, Truffier an-
nounced the rule that all waiters must work at least one
lunch per week. Mischiu immediately told Truffier that
he knew that she could not work lunch. Truffier replied
that he did not care. Mischiu answered that she never
worked lunch when she was in school. Truffier respond-
ed that she had to arrange her schedule so that she
would be available for one lunch per week. Mischiu said
that she could not and offered to show Truffier her
schedule. He said that he did not care.
Mischiu's schedule for the week of 17 September was
the dinner shift on Monday, Tuesday, Thursday, and Sat-
urday and the lunch shift on Thursday.
On 17 September Mischiu called in sick and did not
attend school.
The next day, she told Truffier that she had school on
Monday nights and requested and received permission
from Truffier for a replacement to cover her lunch and
Monday dinner shifts. Truffier approved, as long as she
obtained a substitute. She asked Maneval, who agreed to
work Thursday lunch for her, and he did so on 20 and
27 September and 4 October. Mischiu was also able to
have LeMonnier work the Monday dinner shifts of 24
September and 1 October.
On 8 October LeMonnier was again supposed to re-
place Mischiu, but was told by Truffier that she need not
come in because business was slow.
In late September or early October, Michiel came to
the restaurant. On his departure, Mischiu found that her
Saturday dinner shift was eliminated.
On 9 October Maneval told Mischiu he might be
unable to substitute for her for the Thursday, 11 October
lunch shift. On 11 October Maneval and Mischiu did not
work lunch and she did not call or tell Truffier of her
unavailability. That evening she arrived 40 or 50 minutes
late for her dinner shift. She apologized for being late.
33 She registered that night and received a 5-day-per-week school pro-
gram
SAINT JEAN DES PRES RESTAURANT
Truffier asked why she missed the lunch shift , and she
said she spoke to Maneval . Truffier then said that it was
apparent that she was having problems with her sched-
ule, she did not work when assigned , and that he and
Van Antwerpen had discussed the situation that morn-
ing. Mischiu answered that she had been a good worker,
but that all these problems began when her schedule was
changed , adding that Truffier knew that she could not
work Monday dinners or Thursday lunches . She asked
for a change of schedule , Truffier asked why he should
be "good" to her, adding that no one was good to him,
and that he received letters every day saying that he was
not "severe" enough with the workers-that they were
"out of control ." Truffier then said that that week's
schedule was made by Michiel and it could not be
changed.
On Monday , 15 October , Mischiu was unable to obtain
a substitute for her dinner shift . She called the restaurant
and left a message with Dannow . At the end of her class
that night at 8:30 p .m., Mischiu called Truffier and of-
fered to come to work if she was needed . Truffier re-
plied that Respondent also unsuccessfuly tried to get a
replacement for her that night . Truffier added that he
and Van Antwerpen decided that because Mischiu could
not work on her assigned shifts , she was unreliable. He
also said that Respondent 's attorneys gave it the "green
light" to fire her . Mischiu asked if she was fired and
Truffier suggested that she speak to Van Antwerpen.
The next day Mischiu called Van Antwerpen and
asked her if she was aware that she could not work
Monday dinners or Thursday lunch because of her
school schedule. Van Antwerpen said that she was not
aware of that but, that regardless of her school schedule,
her work schedule could not be changed because it was
made by Michiel . Mischiu told her that from the start of
her employ Respondent accommodated her work hours
with her school schedule but since 13 September she had
to work lunches.
Later that day Mischiu went to the restaurant and
again spoke to Van Antwerpen . Mischiu offered to show
her school registration form but Van Antwerpen said it
was not necessary . Van Antwerpen told Mischiu that the
fact that she missed three shifts in a row in the past
week, 8, 11, and 15 October, meant that she was not
willing to work , because she missed shifts. Mischiu said
she was willing to work. Van Antwerpen repeated that
she could not change the schedule which was made by
Michiel , and invited Mischiu to quit if she did not like it.
Mischiu refused to quit , adding that she wanted to work
and was available any shift except Monday dinner and all
lunches . Van Antwerpen then questioned whether her
claim that she did not have to work lunch was valid be-
cause she worked the lunch shift in the past . Mischiu re-
plied that she only worked lunch when she volunteered
to do so when she was on vacation from school , and that
she had an agreement with Boumal , which was honored
by Weber, Weber's replacement, and Truffier until 13
September that she could work the shifts she desired.
Van Antwerpen said that she was unaware of such an
agreement. Mischiu asked her, inasmuch as many waiters
were not scheduled to work Monday dinner , and she had
school then , why her shift could not be transferred to
121
another worker who was available to work that night.
Van Antwerpen , who testified that the Monday dinner
shift was usually the slowest dinner shift of the week, re-
plied that the schedule was designed to work for the
needs of the employees and the business . Mischiu then
asked why her needs were not considered and Van
Antwerpen responded that Mischiu 's schedule was not
compatible and interfered with the business . Mischiu
again asked that she be replaced by another employee
for Monday dinner shift , and Van Antwerpen said that
Respondent does not need too many workers for that
shift . Mischiu asked why certain employees did not work
lunch or Monday dinner . Van Antwerpen then insisted
that the schedule would not be changed and fired her be-
cause she missed too many days and had problems with
her schedule which meant that she was not willing to
work and was unreliable.
Van Antwerpen testified that Truffier's practice in as-
signing shifts to new employees is to schedule workers
when they are available to work . If they are unavailable,
he tries not to assign them to the inconvenient shift. If a
waiter wants to change his shift he would ask Truffier
and, if the business of the restaurant permits, the change
would be made.
Van Antwerpen stated that , at the time of Mischiu's
discharge for missing two lunches and one dinner shift,
she did a "very good job" and was Respondent's most
senior waitress . She knew that Mischiu was a day stu-
dent but did not know whether she worked lunches
during the school year . Mischiu explained her absence to
Van Antwerpen on 16 October including the fact that
she was a student but was told that Respondent needed
reliable workers . Van Antwerpen testified that in decid-
ing to fire Mischiu she considered the fact that Mischiu
was a student who could not work the lunch shift, and
she knew that Mischiu was absent from work on the
three occasions due to her school schedule.
Van Antwerpen conceded that , at her discharge inter-
view, Mischiu asked that her schedule be changed be-
cause she could not work on certain days . Van Antwer-
pen refused to change her schedule , notwithstanding that
she altered a schedule for Maneval by giving him more
shifts , which possibly involved asking another worker to
change shifts, because the discussion at that time con-
cerned her failure to report to work when scheduled.
Van Antwerpen further admitted that some employees
were not required to work lunches.
Truffier testified that he tried to accommodate Mischiu
in October 1983 when he prepared the schedules by at-
tempting to honor her request for a special schedule. He
knew that Mischiu was a student and he condeded that it
was possible that she told him that she could not work
the lunch shift , except for school vacations during the
school year, and in fact he did not schedule her for
lunch in the past because of her school commitments.
However, when she failed to report to work three times
in early October , he told Van Antwerpen that she had
not come to work and asked her to decide whether to
retain Mischiu.
Van Antwerpen stated that Mischiu was fired for miss-
ing two lunches and one dinner , but Respondent's brief
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argues that the discharge was for being absent for two
dinners and one lunch. Van Antwerpen also stated that,
in prior weeks, when Mischiu noticed that the schedule
required her to work lunch shifts, she would tell Van
Antwerpen that she had classes and could not work. But
in the 2 weeks prior to her discharge, during the period
that she missed two lunches, she did not tell Van
Antwerpen, when the schedule was posted , that she had
classes.
2. Analysis and discussion
The General Counsel's case-in-chief shows that Mis-
chiu had a conversation with Elster in late June in the
restaurant concerning the Union; on her return in early
September she spoke in favor of the Union to several co-
workers in the restaurant; in late September she was
threatened with discharge by Truffier who said that if
she continued to spread rumors, he would fire her re-
gardless of the Union and warned her that there are in-
formers and the walls have ears ; and she was the subject
of a threat the day after the election in which Truffier
threatened to fire all the workers and close the facility
due to the election results. Respondent accordingly had
knowledge of Mischiu's union activity. She was an early
and strong advocate of the Union who espoused its cause
to other workers. Truffier impliedly told her that her ac-
tivities were being monitored when she demanded to be
confronted with the person who informed management
that she was spreading rumors. The fact that Truffier
threatened to fire her regardless of the Union lends sup-
port to a finding that he believed that she was a union
supporter who the Union would aid if she was fired. The
other unfair labor practices found and the statements
made by Truffier and Van Antwerpen clearly demon-
strate its animus toward the Union.
The record compels the conclusion that the scheduling
of Mischiu for a Monday dinner shift and one lunch per
week and the refusal to change the schedule was espe-
cially onerous because of her school commitments and
was effectuated to harass Mischiu by "visiting adverse
economic and personal consequences upon [her] with the
object of causing [her] either to abandon [her] leadership
effort in the union undertaking or to accomplish [her]
resignation from the work force."Perko's Inc., 236 NLRB
884, 898 (1978). In this connection I note that Van
Antwerpen invited Mischiu to quit if she could not
adhere to the schedule.
The failure of Respondent to grant a scheduling ac-
commodation to Mischiu serves to support a finding of
unlawful motivation for the discharge. Respondent had
accommodated her school schedule with her work
schedule until the election. The institution of the new
schedule requiring luncheon work and the refusal to
change her Monday dinner shift forced Mischiu to make
arrangments to secure other waiters to replace her for
those shifts. Together We Stand Women's Guild, 256
NLRB 393, 398 (1981). According to Respondent's offi-
cials, they routinely tried to accommodate employees' re-
quests and it appears that they did so for Mischiu prior
to the Union's advent. Release from the Monday dinner
shift would have presented no hardship to Respondent
because, according to Van Antwerpen, that was usually
the slowest night of the week, and other employees were
available. Respondent's stubborn refusal to give Mischiu
a work schedule that would permit her to attend school
precipitated her unlawful discharge for her failure to
work the hours given her because of her activities in the
Union. S.S. Kresge Co., 199 NLRB 303, 306 (1972).
I accordingly fmd that Mischiu's union activities and
the knowledge thereof by Respondent; the discriminato-
ry institution of the requirement that all employees must
work at least one lunch per week; the refusal of Re-
spondent to accommodate Mischiu 's reasonable request
to be relieved of working Monday dinner and Thursday
lunch; the contemporaneous commission of the other
unfair labor practices I have found and the timing of
these events all around the election, which results
evoked a hostile reaction in Respondent's officials, all
lead to the conclusion that the General Counsel has
made a prima facie showing that Mischiu's protected ac-
tivity was a motivating factor in Respondent's decision
to discharge her. Wright Line, supra.
Mischiu was allegedly discharged for not appearing
and not obtaining a placement for the dinner shifts of 8
and 15 October and the lunch shift of 11 October. I
credit the testimony of LeMonnier that, as her replace-
ment for 8 October, she called Truffier and asked if she
should report to work, and Truffier told her that it was
not necessary because the restaurant was slow due to
Columbus Day. Thus, part of the reason for her dis-
charge-the absence of 8 October-was not true.
I reject Respondent's officials' testimony that they
could not change the schedule which required Mischiu
to work Monday dinner and Thursday lunch because (a)
Michiel had set it and (b) she worked those shifts in the
past. Maneval's testimony, which I credit, was that after
Michiel changed the schedule to reduce his shifts he told
Van Antwerpen that he would have to quit because he
had too few shifts. Van Antwerpen changed the schedule
and gave him two to three more shifts and he continued
to work. Van Antwerpen thus was willing to make a
change in Michiel's schedule for Maneval but refused to
do so for Mischiu. It would have been a simple matter
for Mischiu to have been switched from the Monday
dinner shift because Monday night was usually Respond-
ent's slowest night. In addition, although Mischiu had
worked the disputed shifts in the past, she worked the
lunch shift during school vacation on a voluntary basis.
Of course, she regularly worked Monday dinners in the
past because she requested dinner shifts only. Although
she had worked these shifts prior to the schedule change,
Respondent was made aware of her inability to work
them immediately when the new luncheon requirement
was announced, and when the new schedule, requiring
the Monday dinner shift, was instituted. Thus, Respond-
ent was immediately placed on notice of her schedule
conflict and refused to relieve it. Nissen Foods, 272
NLRB 371 (1984).
I thus conclude that Respondent has not established
that it would have fired Mischiu in the absence of her
union activities. Wright Line, supra.
SAINT JEAN DES PRES RESTAURANT 123
III. THE REPRESENTATION CASE
A. The challenged ballots
1 Matilda Liff
a. Facts
LIff was challenged by the Union on the ground that
she is a supervisor. The Respondent denies this.
Lift's job title was described by the employee wit-
nesses as "hostess." The classification "hostess" was ex-
pressly included, as eligible to vote, in the unit designa-
tion agreed to between the parties in their election agree-
ment . However, the Union argues that Liff was more
than a hostess and that her duties encompassed functions
performed by a supervisor, which title is of course ex-
cluded from the appropriate unit.
It is undisputed that Lift's main function is that of a
hostess. She generally stands near the restaurant's en-
trance, and greets the customers; takes them to their
seats; gives them menus; takes food and bar orders;
brings food and drinks to the table; takes the check with
the payment to the cashier; and clears and cleans tables.
She also circulates around the dining room.
Liff works nine shifts per week-generally from 11
a.m. to 3 p.m. and 6 p.m. until the restaurant closes.
During the dinner shifts, she is supervised by Truffier,
the maitre'd, an admitted supervisor. Liff gives such in-
structions to waiters as telling them to clean the tables
and ashtrays; fill the customers' water glasses; arrange
the tables; and change the place settings. She also reas-
signs employees to stations other than their original as-
signment or asks them to help at other stations, and
writes and posts the station assignments.
Truffier is off from work one dinner shift per week,
and during his absence at night Liff is responsible for the
restaurant. On those nights, she assigns stations, sends
employees home early if the business is slow or if em-
ployees ask to leave early, and closes and locks the res-
taurant when she leaves.
Waiter De Boysson testified that on one occasion he
stood near the cashier waiting for a credit card to be
checked when Liff approached and told him that it is not
his job to stand still near the cashier, but to service the
tables. On another occasion Liff told Mischiu that she
should wear a different pair of shoes than the ones (not a
high quality) she had on. Mischiu replied that they were
comfortable, but Liff answered that they were "inappro-
priate" for the restaurant. Mischiu changed her shoes.
On another occasion, Liff apparently noticed Mischiu re-
moving eight glasses at once from a table-putting her
fingers into the glasses in order to hold them. Liff told
her that Respondent was not a diner or coffeeshop and
that she should not do that. Thereafter, Mischiu removed
two glasses at a time. In late Sepember 1984, Mischiu
saw Liff assign a new waiter to a station on his first
night of work Later that night Liff told Mischiu that the
waiter was "terrible," and she asked Mischiu to cover his
tables. At 11 p.m., Liff told him to leave early. Mischiu
never saw the waiter again . On another occasion, Mis-
chiu overheard Liff tell Truffier that waitress Brigette
was messy, wore dirty or yellow shirts, and was not
polite to customers. Truffier said he would "see," and a
few days or 1 week later Brigette was discharged.
Liff, who arrives for the lunch shift about noon,
whereas the waiters are required to come to work at
11:30 a.m., does not punch a timeclock. All the waiters
punch a timeclock. Truffier, Van Antwerpen, and Liff
do not punch a clock because, according to Van
Antwerpen, they earn a salary-which is $450 per week.
The waiters are paid $2.35 per hour plus a share of the
tips. Liff shared in the tips, for the first month of her
employ, but no longer does so. She also resides in an
apartment free of charge, which is owned by Respond-
ent.
Van Antwerpen testified that Liff never hired, promot-
ed, suspended, fired, laid off, reprimanded, or evaluated
employees, and that she has no authority to do so. She
conceded that Liff has the authority to ask a waiter to
clean a table; obtain food from the kitchen; give water to
a customer; and in Truffier's absence, assign waiters to
their stations in the manner done by Truffier; and allows
employees to leave before the end of their shift. In this
regard she uses her own judgment concerning when they
can leave, but she follows the restaurant's practice-if
business is slow , and only a few customers are present,
she can determine how many waiters can leave. Van
Antwerpen stated that, although she does not in fact
know what Liff did during the dinner shift after Van
Antwerpen left the restaurant, she noted that Liff does
not have the authority to tell a waiter to help out at an-
other table, or to adjust improper dress. Van Antwerpen
further noted that during her vacation Liff assumed her
duties and signed the paychecks.
Liff did not testify.
b. Analysis and discussion
I find that Liff is a supervisor within the meaning of
the Act. Although her main duty is that of a hostess, she
also exercises sufficient authority over the waiters to
warrant such a finding. Thus, she gives instructions to
waiters ; assigns and reassigns employees to stations; rep-
rimands waiters for standing idle and wearing improper
dress; directs employees to leave early; and is in com-
plete charge of the restaurant one shift per week in Truf-
fier's absence. In the latter instance, if Liff is not consid-
ered a supervisor the restaurant would have no one in
authority one shift per week.
A proper inference may be drawn from the fact that
Liff was not happy with the performance of the new
waiter and complained to Truffier about Brigette, and
their nonappearance sometime thereafter, that she recom-
mended their discharge to Truffier. She has in common
with admitted Managers Truffier and Van Antwerpen
the amount of salary and the fact that she does not
punch a timeclock. In fact, her compensation by Re-
spondent is greater because she resides in a rent-free
apartment owned by the restaurant.
Moreover, Llff's salary, which is the same as her supe-
rior's, Truffier, and her benefits, including the free apart-
ment, which exceed Truffier's, and the combination of
which far exceeds that of the waiters, all point to a find-
ing that Liff is a supervisor.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Sheraton Motor Inn, 210 NLRB 790, 792 (1974), the
Board found that that restaurant 's hostess , having essen-
tially similar duties to that of Liff, was a supervisor, the
only differences , which are insubstantial considering the
other factors, being that (a) an employee was hired after
having been interviewed by only a hostess and (b) the
employees "report in" to the hostess after they punch in.
Maremont Corp., 239 NLRB 240 (1978), relied on by Re-
spondent , is inapposite . That case involves leadpersons in
a plant who, by virtue of their greater skills, give in-
structions and admonish employees in a routine nature.
The leadperson, like the unit employees, punched a
clock, were hourly paid, and spent most of their time
doing routine work predetermined by their supervisors.
Those factors are not present here.
I shall therefore recommend, inasmuch as I find that
Matilda Liff is a statutory supervisor, the challenge to
her ballot be sustained , and that her ballot not be opened
or counted.
2. Jean De Boysson
a. Facts
De Boysson was challenged by the Board agent on the
ground that he was not on the eligibility list. Pursuant to
the election agreement, the payroll period for eligibility
to vote was the period ending 18 August.
In addition the Respondent asserts that De Boysson's
ballot should not be counted because he was "in train-
ing" during the week ending 18 August and therefore
was not a regular employee.
De Boysson testified that on 13 August he was inter-
viewed and hired by Truffier. He was asked to work that
evening but was unavailable. He began work the next
evening, 14 August, helping the other waiters, for which
he received no tips and no wages. He again worked the
following day, 15 August, performing the same duties
and received a half share of tips. According to Truffier,
he was in training for those 2 nights only. On 15 August
Truffier told him that he would "work out" and that he
would receive a full share of tips on 16 and 17 August,
which he did, having been assigned to a station both
nights.39
He did not work on 18 August, but worked three
shifts the following week, on 21, 22, and 23 August, for
which he received a full share of tips.
Employee Elster testified that he worked with De
Boysson for two shifts in the week of 13 August. Em-
ployee Neil Sukoff stated that De Boysson first began
work on 14 August and worked there for the next 2 or 3
nights.
In his second week of employment De Boysson re-
ceived a timecard, and thereafter was on the payroll and
received wages until 3 October, when he quit.
The timecard in evidence apparently shows that he
first utilized a card on 21 August. According to Manager
Van Antwerpen, employees are not necessarily given
timecards upon their hire. Timecards are given to them
days or even weeks after they begin work. No wages are
paid to a worker who does not have a timecard because
the hours worked are not recorded and thus not trans-
mitted to the bookkeeper. Such an employee therefore
does not appear on Respondent's payroll until he is given
a timecard. However, Van Antwerpen conceded that the
fact that De Boysson was not listed on Respondent's
payroll records in the beginning of his employ does not
mean that he was not working then. She conceded that
workers could be working and receiving tips but not be
listed on the payroll register.
b. Analysis and discussion
The Board has held that "eligibility is conferred by
working during the eligibility payroll period," and that
"if an employee works at any time during the payroll
period, he meets this aspect of the eligibility test." Gator
Products, 250 NLRB 282 (1980).
The eligibility period here is the period ending 18
August. Respondent's payroll week runs from Monday
to Saturday. Thus, in order for De Boysson to have been
eligible to vote he must have worked at any time during
that week, from Monday, 13 August, to Saturday, 18
August.
The evidence is clear that De Boysson began work on
14 August, and worked on 15, 16, and 17 August. He
was accordingly working during the payroll eligibility
period and was employed on the date of the election.
I reject Respondent's argument that De Boysson was
ineligible to vote because he was in training during the
week of 13 August. Truffier admitted that his training
consisted of 2 nights only, 14 and 15 August, and, ac-
cording to De Boysson's uncontradicted testimony, Truf-
fier advised him on 15 August that he would "work out"
and would thereafter receive a full share of tips. De
Boysson's training period, therefore, ended on 15 August
and he was no longer in training on 16 and 17 August,
prior to the 18 August eligibility cutoff date. Moreover,
even if De Boysson could be classified as a trainee
during part of that week, such would not thereby war-
rant his exclusion from the unit where, as here, he shared
a sufficient community of interest with the other unit em-
ployees. Johnson's Auto Spring Service, 221 NLRB 809
(1975).
I shall therefore recommend that the challenge to the
ballot of Jean De Boysson be overruled and that his
ballot be opened and counted.
3. Neil Sukoff
Because I have already found that the discharge of
Sukoff prior to the election was not unlawful , I shall sus-
tain the challenge to his ballot and order that it not be
opened or counted.
B. Objections to the Election
The Union's objections are as follows:
1. On or about August 22, 1984, the employer, by
its agents and representatives, terminated the em-
ployment of Neil Sukoff, a waiter, because of his
activities in and on behalf of the union.
39 Respondent's tip sheets confirm De Boysson's testimony
SAINT JEAN DES PRES RESTAURANT
4. Beginning on or about August 12, 1984, the
employer began hiring new employees as bartenders
and waiters/waitresses which resulted in substantial-
ly reducing the hours worked by certain existing
employees who were active in and on behalf of the
union.
5. By these and other acts , the employer de-
stroyed the laboratory conditions necessary for the
conduct of the election.40
Inasmuch as I have found that the discharge of Sukoff
was not unlawful, and that the allegation concerning the
hire of new employees and the reduction of hours of ex-
isting workers had no merit , I will recommend that Ob-
jections 1 and 4 be overrruled.
The Regional Director found that the conduct set
forth in the complaint in this case , although not specifi-
cally alleged as objectionable , is encompassed in and
within the scope of Objection 5.4 t Inasmuch as I have
found violations by Respondent of Section 8(a)(1) and (3)
of the Act, Objection 5 is sustained . I will recommend
that, if the Union does not receive a majority of the valid
votes cast, according to a revised tally after the ballot of
Jean De Boysson is opened and counted, the election be
set aside and the Regional Director be directed to con-
duct a second election.
CONCLUSIONS OF LAW
1. Respondent Michiel 's Inc . d/b/a Le Saint Jean de
Pres Restaurant is and at all times material herein has
been an employer engaged in commerce within the
meaning of the Act.
2. Hotel Employees and Restaurant Employees Union,
Local 100 of New York, New York and Vicinity, AFL-
CIO is a labor organization within the meaning of the
Act.
3. By discharging Rodica Mischiu because of her
membership in and activities in behalf of the Union, Re-
spondent violated Section 8(a)(3) and (1) of the Act.
4. By requiring its employees to work at least one
lunch shift per week because of their union activities,
Respondent violated Section 8(a)(3) and (1) of the Act.
5. By announcing a new rule whereby Respondent
would thereafter dock the pay of its employees for being
late to work to induce them not to support the Union; by
informing an employee that he would lose pay for being
4 minutes late to work , to induce him not to support the
Union; by threatening to discharge employees and threat-
ening them with unspecified reprisals because of their
support for the Union; by threatening its employees with
closure of its facility and with discharge of all the em-
ployees if the Union won the election; by threatening its
employees with closure of the facility and with discharge
of all the employees because of the result of the election;
and by threatening its employees with closure of its facil-
ity if the employees voted for the Union, Respondent
violated Section 8 (a)(1) of the Act.
40 Objections 2 and 3 were withdrawn by the Union prior to the hear-
ing
41 There was no evidence that special permission to appeal the Re-
gional Director's finding was requested
125
6. The acts and conduct set forth above in Conclusions
of Law 3, 4, and 5 constitute objectionable conduct war-
ranting the setting aside , under certain circumstances, of
the representation election conducted on 12 September
1984.
7. Respondent has not violated the Act in any other
respect as alleged in the complaint.
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.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I find it necessary to order it to
cease and desist , and to take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent unlawfully discharged
Rodica Mischiu, I recommend that Respondent be or-
dered to reinstate her and make her whole for any loss
of earnings she may have suffered as a result of the dis-
crimination against her. The amount of backpay shall be
computed in the manner set forth by Isis Plumbing Co.,
138 NLRB 716 (1967), as modified by Florida Steel Corp.,
231 NLRB 651 (1971).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed42
ORDER
The Respondent , Michiel 's Inc . d/b/a Le Saint Jean
de Pres Restaurant , New York, New York, its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting Hotel Employees and Res-
taurant Employees Union , Local 100 of New York, New
York and Vicinity, AFL-CIO, or any other union.
(b) Requiring its employees to work at least one lunch
shift per week because of their union activities.
(c) Announcing a new rule whereby it would thereaf-
ter dock the pay of its employees for being late to work
or informing employees that they would lose pay for
being late to work to induce them not to support the
Union ; threatening to discharge employees because of
their support for the Union ; threatening its employees
with closure of its facility and with discharge of all its
employees because of the Union or the election.
(d) 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) Offer Rodica Mischiu immediate and full reinstate-
ment to her former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
42 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her seniority or any other rights or privileges previously
enjoyed, and make her whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against her, in the manner set forth in the remedy
section of the decision.
(b) Remove from its files any reference to the unlawful
discharge of Rodica Mischiu and notify her in writing
that this has been done and that the discharge will not be
used against her in any way.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its New York facility copies of the attached
notice marked "Appendix."43 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by the Respondent's authorized repre-
sentative, 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 Respondent to ensure that the notices
49 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 "
are not altered, defaced, or covered by any other materi-
al.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations not specifically
found herein.
IT IS ALSO FURTHER RECOMMENDED that Case 2-RC-
19802 be, severed from the complaint cases and that it
be, remanded to the Regional Director for Region 2, and
that the challenges to the ballots of Matilda Liff and Neil
Sukoff which were cast in a representation election con-
ducted in said case on 12 September 1984 be, sustained
and those ballots not be opened or counted; and that the
challenge to the ballot of Jean De Boysson, which was
cast in the aforesaid election be, overruled; and that the
Regional Director be, directed to open and count the
challenged ballot of Jean De Boysson and to prepare and
serve on the parties a revised tally of ballots.
If the Petitioner receives a majority of the valid votes
cast, the Regional Director shall issue a certification of
representative. If the Petitioner does not receive a major-
ity of the valid votes cast, according to the revised tally,
IT IS FURTHER RECOMMENDED that the election held on
12 September 1984 among certain employees at Respond-
ent's New York restaurant be set aside and that the Re-
gional Director be directed to conduct a second election
at such time as he deems that circumstances permit the
free choice of a bargaining representative.