Maestro Caf Associates

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 106 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maestro Cafe Associates, Ltd. and Local 6, Hotel,
Restaurant and Club Employees & Bartenders
Union, AFL-CIO. Case 2-CA-18505
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 29 September 1983 Administrative Law
Judge Eleanor MacDonald issued the attached de-
cision. The General Counsel filed exceptions and a
supporting brief, and the Respondent filed cross-ex-
ceptions and a reply brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, ' and
conclusions 2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Maestro
Cafe Associates, Ltd., New York, New York, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
'The General Counsel and the Respondent have excepted to some of
the judge's credibility findings. The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We adopt the judge's conclusion that the Respondent violated Sec.
8(aXl) of the Act by setting up a discriminatory and overly broad rule
based on its warning to an employee that it was illegal to talk about the
Union at work. However, in finding the rule overly broad we do not
rely, as did the judge, on T.R. W. Division, 257 NLRB 442 (1981), which
was overruled in Our Way, Inc., 268 NLRB 394 (1983). Rather, we con-
clude that the Respondent's rule was overly broad because it appeared to
include a ban on discussing the Union on the employees' own time in
nonpublic areas of the restaurant. See Marriott Corp., 223 NLRB 978
(1976).
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge.
This case was tried in New York, New York, on January
26, 27, and 28 and March 2 and 3, 1983. The complaint
dated February 10, 1982, alleges that Respondent, in vio-
lation of Section 8(a)(1) and (3) of the Act, interrogated
its employees, created an impression of surveillance, di-
rected its employees to cease discussing the Union,
threatened its employees, and discharged its employee
270 NLRB No. 15
Joanne Pilliteri because she supported the Union. Re-
spondent denies the material allegations of the Com-
plaint.
On the entire record, including my observation of the
demeanor of the witnesses, and after due considerations
of the briefs filed by the parties in May 1983, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York limited partnership located
in New York City, operates a public restaurant and an-
nually derives gross revenues in excess of $500,000 and
purchases goods and materials valued in excess of
$50,000 indirectly in interstate commerce. Respondent
admits and I find that it is an employer engaged in com-
merce 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.'
11. THE ALLEGED UNFAIR LABOR PRACTICES
The following are supervisors and agents of Respond-
ent:2
Emanuel (Manny)
Katz
Morty Katz
Evelyn Wing
John Tree
General Manager
Manager-Owner
Assistant Manager
Night and Bar Manager
The evidence shows that the Union commenced orga-
nizing Respondent's employees in October 1981, and
filed a petition with the Board on November 3, 1981.
The election was held on January 13, 1982.
The restaurant, located near Lincoln Center in New
York City, was open 7 days per week from 12 noon until
about 1 a.m. The restaurant employed about 62 employ-
ees including 35 waiters, waitresses, and busboys, and 4
hosts were supposed to supervise the waiting staff, ensur-
ing that they were neatly dressed, that they covered
their stations and were prompt. One host, Lawrence
Watson, was given the duty of making up the schedule
for the waiting staff; he also interviewed job applicants
and recommended the hiring of employees. Hosts could
not send employees home if business was slow, only
floor managers could do that.3 The waiters, waitresses,
and busboys were generally part-time employees; many
of them were aspiring actors, dancers, and designers pur-
suing studies in their respective fields.
Because of the fact that the waiters and waitresses
often had commitments to their studies or other activi-
ties, they were permitted to obtain substitutes to cover
their shifts. Each week, a schedule of shift and station as-
signments would be posted. This schedule had blanks for
the listing of substitutes.
I On June 24, 1982, Respondent sold its interest in the restaurant.
'This decision will refer to Emanuel Katz as Katz; where Morty Katz
is referred to, his full name will be indicated.
I Floor managers were Emanuel Katz (the general manager), Evelyn
Wing, and John Tree.
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MAESTRO CAFE ASSOCIATES
Katz testified that, if a waiter or waitress wanted time
off from a scheduled shift, he or she was responsible for
obtaining a substitute and indicating the identity of the
substitute on the schedule. If the substitute did not show
up for work, the employee whose shift it was would be
held ultimately responsible. This rule applied even if an
employee could not work due to illness. According to
Katz, the penalty for failing to arrange coverage for
one's own shift was discharge. He testified that, when
employees were hired, he informed them of this rule and
advised them to take a list of all the other employees
home so that they could arrange coverage if it became
necessary. Katz stated that he may have excused a failure
to cover one's shift once or twice in 2 years if it were
due to a death in the family or in case of illness if the
employee called him and he could assess the situation.s
Katz testified, and the record shows, that different
rules applied to cooks who were full-time professionals.
It was hard to find a good cook, and rules governing ex-
cusable absences as well as other conditions of emloy-
ment were different for kitchen employees and were
more lenient than the rules governing the waiting staff.
Every night before the dinner hour, Wing or Katz
conducted a meeting to inform the waiters and waitresses
of the evening's specials and other matters and, every 2
months or so, Katz conducted a staff meeting.
A. The October 1981 Staff Meeting
Joanne Pillitteri, a waitress at the Maestro since its
opening in 1980, testified that in October 1981 she at-
tended a staff meeting where management discussed the
speed of service, menus, and the like. After about 1-1/2
hours, Pillitteri stated, she raised her hand and com-
plained about various things: There was poor communi-
cation between the staff and management, rules were un-
clear, there was a lot of tension, it was difficult to get
food out of the kitchen quickly, employee meals were in-
adequate, holidays were not allotted on the basis of se-
niority, and the locker room was dirty and unheated. Ac-
cording to Pillitteri, Katz asked her why she remained at
the Maestro if she had all these complaints and Pillitteri
said that she liked the place and "enjoyed management"
socially and had strong friendships with her coworkers.
She also told Katz that she had worked in union and
nonunion "houses" and that he did not give his own em-
ployees enough credit although some of them were far
better than some career waiters she had worked with.
Pillitteri estimated that she spoke for about 20 minutes.
Another waitress, Janet Pennybacker, then raised her
hand, agreed that the Maestro was a nice place to work
and said that she had also worked as a union member
and that Respondent's employees were a "very compe-
tent crew." After the meeting Katz pointed at Pillitteri
and, smilingly, said, "alright for you, I'll get you for
this." Pillitteri testified that she believed and still does
believe that Katz was making a joke.
Based on the testimony of all the witnesses, I find that
Pillitteri's description of the meeting was essentially cor-
rect. All of the other witnesses generally corroborated
* This testimony was contradicted by other evidence as will be seen
below.
Pillitteri's account, agreeing that she spoke for 10 to 15
minutes and raised a number of complaints. It also ap-
pears that other employees spoke after Pillitteri and that
they generally supported her comments. Katz comment-
ed that the staff should discuss these problems with him
and said employees should seek him out.
One week to the day of the staff meeting, on a
Wednesday, Pennybacker phoned Pillitteri at home and
informed her, in case she did not know what was going
on, that people had been signing pledges for the Union.
Pennybacker asked Pillitteri to sign a card and, on Octo-
ber 28, Pennybacker gave her a card at another restau-
rant. Pillitteri took it to work with her and signed it on
the loading dock.6
The exact date of the staff meeting was not established
at the trial herein. I find that it occurred in early to mid-
October 1981.
B. Events of October 30, 1981
On October 30, 1981, Western Union telephoned the
restaurant and read a nightwire from the Union inform-
ing Respondent that the Union represented a majority of
its employees and requesting negotiations. Katz testified
that this was the first he had heard about a union and
that he was "shocked by it."
Pillitteri testified that on Friday, October 30, at around
8 or 8:15 p.m. Katz asked her to come over to a table
where he was seated with Morty Katz. Waitress Mary
Lee Stevens was also asked to come over, and Penny-
backer was standing at the table. Morty Katz asked Pen-
nybacker if she had joined the Union and she said, "you
can't ask me that, stop harassing me." Then Morty Katz
asked Pillitteri if she had signed for the Union, and she
said, "No." After this, Pillitteri heard Morty Katz ask
Mary Lee Stevens the same question. Stevens replied,
"you can't ask me that." Pillitteri saw Katz call other
waitresses over to the table during the evening. Accord-
ing to Pillitteri, before this conversation she was "very
friendly" with Manny Katz, having dinner with him oc-
casionally and visiting his summer home. Pillitteri
claimed that, after this conversation, Katz did not speak
to her again. She was sure that Katz' attitude did not
change after the October staff meeting-it changed after
the October 30 telegram.
Cynthia Reed, a waitress at the Maestro, testified that,
on the night the telegram was received, Manny and
Morty Katz called her over to a table and asked her if
she had signed a petition or a card for the Union. She
said "yes" and then they sent her back to work.6
Waitress Mary Lee Stevens testified that on the night
of the telegram, about 7:30 or 8 o'clock, Manny Katz
called her over to a table in the dining room and asked
her if she had signed a petition or card from the Union. 7
She said she did not know. He asked again and she re-
peated the same answer. Then he asked "Cindy" if she
had signed and she said, "yes." Then Katz asked Stevens
again. When she said she did not know, Morty Katz said,
The card is dated 10-29-S1.
I find that Reed was a reliable witness and I credit her testimony.
Stevens was a frank witness who made an effort to recall accurately
and answer questions helpfully. I credit her testimony.
107
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"It's obvious that she signed." Stevens was sure Manny
and not Morty interrogated her.
Katz denied questioning any of his employees. Morty
Katz did not testify in the instant proceeding.
It is evident that the three waitresses disagree some-
what as to what occurred when they were called over.
Pillitteri testified that Morty Katz questioned her, Penny-
backer, and Stevens. 8 Stevens testified that Manny Katz
asked questions of her and of Reed. Reed stated that
both Manny and Morty Katz questioned her. Pillitteri
claims that Stevens replied "you can't ask me that,"
while Stevens herself testified that she said "no." Both
Reed and Stevens stated that Reed admitted signing a
card for the Union. While the testimony disagrees in the
above-mentioned respects, I am convinced that the inter-
rogations did indeed take place." I find that both Manny
and Morty Katz were seated at a table and called the
waitresses over to ask them if they had signed for the
Union. It is not significant that over a year later the wit-
nesses could not recall which of the two men asked ques-
tions or precisely what answers were given. Further, I
find it significant that Morty Katz did not appear at the
trial to deny the allegations against him.
These interrogations, conducted by the two most im-
portant figures in Respondent's management, were de-
signed to elicit specific information about the allegiance
and activities of each waitress questioned and reasonably
tended to interfere with the rights of employees under
the Act. I find that Respondent violated Section 8(aXl)
of the Act by interrogating Pillitteri, Stevens, and Reed.
C. Alleged Threats to Deborah Burman
Deborah Burman, a waitress at the Maestro, testified
that in early January 1982 Katz spoke to her as she was
leaving the Maestro. Burman testified:
[Katz said] if the union was to come in . . . we
would have all of our benefits taken away, meaning
we would have to work a full time schedule, 5 days
a week. We wouldn't be able to leave at eight
o'clock without working a full shift, a full eight
hours. We wouldn't be able to have substitutes. He
said the Union would be to the disadvantage of
most of the people who worked there since most of
the people were actresses and actors, they needed a
day off here and there. That it would work to their
disadvantage. That the union was only for profes-
sional waiters and waitresses. I told him I had not
decided if I was for the union or against it. I had
not taken a position either way, and he said, well,
fine, I just want you to know what's really going to
happen when they come in here.
Two days later, Katz called her into the office and told
her that he was disappointed in her because he had heard
that she repeated the comments which he had made in
confidence. Then Katz reiterated that the Union would
take away all the benefits and that she would not last
s Pennybacker did not testify in this proceeding.
g I find that Pillitteri did not recall this incident as accurately as did
Stevens and Reed. As will be discussed below, Pillitteri was not always a
reliable witness.
under those conditions. Katz said he would use the em-
ployees' flexible schedules as a negotiation tactic and that
they would all have to work a full schedule. Katz said
he was disappointed in Pillitteri and other employees.
On cross-examination, Burman recalled that Katz said
he did not know if she supported the Union and that he
wanted her to hear the other side of the story. Katz said
all benefits are negotiable and he would use beneits such
as scheduling as a negotiating tactic. Katz said the Union
would impose uniform regulations and as a result the em-
ployees would lose benefits by having to work full-time
schedules. The Union would make the employees work
lunches and keep a full-time schedule as part of its
"package" which would be presented during negotia-
tions. Katz said under the Union the more senior em-
ployees would pick their shifts but that all employees
might be forced to work lunches.
Katz recalled speaking to Burman a week or two
before the election. He told her "since she and I were
again friendly" that he wanted to discuss the pros and
cons of the Union with her. Burman was in law school.
He told her the Union was for people who could not
take care of themselves. If the Union came in, she might
lose whatever gains she had made because "everything
would start from zero and we would negotiate." If union
seniority was a part of a new scheduling policy, the less
senior staff would have to work lunches and would get
fewer tips. This would lead to greater turnover and
senior staff might have to work days too. He did not tell
Burman she would have to work a fixed schedule. He
called her in several days later to complain that she had
distorted his words in relating them to other employees.
He had never told her that all her benefits would be
taken away.
All of Burman's testimony taken together, as modified
by her cross-examination, shows that Katz told her that
schedules would be negotiated by the Union and Re-
spondent and that they would be part of the tactics used
by each side. Further, he told her that the Union, being
an organization for professionals, would seek to impose a
uniform work schedule and that this would result in less
flexibility for the aspiring actors on the staff. Katz did
not tell Burman that Respondent would unilaterally de-
prive employees of the benefits of its present flexible
scheduling. Instead, he predicted that the Union would
seek uniformity and seniority in scheduling and that this
would be to the disadvantage of the present staff. Katz'
statements adequately informed Burman that scheduling
would be part of the negotiations and I can find no im-
plied threat that Respondent would rescind its employ-
ees' benefits if the Union came in. Thus I do not find
that Katz' statements to Burman violated Section 8(a)(l)
of the Act. Wed-Tex of Headland, 236 NLRB 1001, 1004
(1978); Ludwig Motor Corp., 222 NLRB 635, 636 (1976).
D. Alleged Interrogation of Arlene Monahan
On the Saturday afternoon after the union telegram
was read to the Maestro management, Assistant Manager
Evelyn Wing asked waitress Arlene Monahan if she
knew anything about the telegram. Monahan said noth-
108
MAESTRO CAFE ASSOCIATES
ing, and Wing asked if she had signed a card. Wing also
asked whether the waitresses had been talking about the
Union but Monahan did not answer.
Wing did not testify in the trial and the testimony is
thus unrefuted.
I find that Respondent violated Section 8(aXl) of the
Act by interrogating Arlene Monahan. Wing was an im-
portant managerial figure at the Maestro and she asked
for specific information about certain protected activities.
Her questions would reasonably tend to interfere with
employees' rights under the Act.
E. Alleged Warning to Mary Lee Stevens
Mary Lee Stevens testified that about a week before
the election she was talking to another waitress in the
dining room when Manny Katz called her over to the
bar and asked her if she was talking about the Union.
Stevens shrugged and Katz then said it was illegal to talk
about the Union at work. Stevens acknowledged that the
Maestro had a rule against waiters and waitresses con-
gregating on the dining room floor and talking. Katz tes-
tified about this rule and acknowledged its enforcement,
but denied applying it only to union talk or mentioning
the Union to Stevens. Many of the witnesses testified
about this rule; it seems clear that the Maestro made con-
stant efforts to keep members of the waiting staff at their
own stations even if they were not particularly busy.
Employees were often told to "break it up" when they
stood talking during working hours, but management's
efforts were not consistently successful. Further, a con-
versation might be tolerated if it involved only two em-
ployees and not a group. While there is nothing unlawful
about a no-talking rule, if Katz did tell Stevens or imply
to her that she could not talk to a fellow employee be-
cause she was discussing the Union, such a statement
would be unlawful. I credit Stevens' version of this inci-
dent,' ° and I find that Respondent violated Section
8(aXl) of the Act in that Katz interrogated Stevens
about her conversation and in that Katz warned her that
it was illegal to talk about the Union at work. The warn-
ing not to discuss the Union set up a discriminatory no-
solicitation rule and an overly broad rule as well. See
T.R. W. Bearings, 257 NLRB 442 (1981).
F. Discharge of Pillitteri
Pillitteri testified that, some weeks before Christmas
1981, she posted a notice requesting substitutions for the
evening of December 24, 1981; however, no one volun-
teered to work her shift. Pillitteri stated that she told
John Tree several times that she had obtained no substi-
tute but that she could not be there because she was
going to church and going to see her father. She men-
tioned the subject on December 23 after Tree said,
"We'll see you tomorrow," and Tree then replied,
"Okay, okay, have a nice Christmas, love to your
father." " On another occasion, before Thanksgiving,
'O As stated above, I found Stevens to be a credible witness. I do not
believe Katz had a specific recollection of the incident in question.
I Pillitteri's testimony on this point was shifting, evasive, and unclear.
It is not clear to me that Pillitteri actually remembered the events to
which she was testifying.
Pillitteri had asked Tree what he thought would happen
if she did not work on Christmas Eve and he said that he
did not know. Then Tree said, "You know how Manny
feels about family, we protect family." On December 23,
Pillitteri spoke to Hostess Barbara Maxon about her di-
lemma informing her that she was going to midnight
Mass with her father. Pillitteri told Maxon she would
call in the next evening.
On December 24, Pillitteri testified, she called the
Maestro between 4:30 and 5 p.m. and spoke to host Law-
rence Watson. Katz was not available. Pillitteri told
Watson that she would not lie and say she was sick, that
no one had offered to substitute for her, that she believed
the Maestro would not be very busy that night and that
"I feel it's my obligation to go home, go to church, and
see my father." Watson asked if she was sure she wanted
to do that and then wished her a good Christmas. Pillit-
teri was discharged by a telegram dated December 28,
1981, which stated that "contrary to company policy,
you did not report for work as scheduled on December
24, 1981, or obtain a replacement." On December 28, she
called Tree to ask about her discharge. Tree did not
know anything about it. He said he had heard Katz say
that "they wouldn't let the whole thing just go by and
they were talking about suspension." Tree then asked
Pillitteri who started the Union and whether she thought
her discharge had anything to do with that meeting.
Tree told her that business had been slow Christmas Eve
and that the Maestro had closed at 10:30 p.m. Pillitteri
did not ask him to intercede for her.
On cross-examination, Pillitteri testified that she had
posted her notice requesting a substitute before the staff
meeting in October. However, from that time until
Christmas Eve she did not ask Katz for permission to be
absent. She stated that the drive to her father's house
was about I hour and 10 minutes. On December 24, her
brother's car was not working and he was trying to rent
a car; as it happened, she went neither to her father's nor
to Mass. She did not consider taking the train to her fa-
ther's.
Pillitteri acknowledged being told that her shift was
her own responsibility, but she denied ever hearing that
she could be discharged for failing to cover her shift.
She thought she might be reprimanded or suspended for
missing a shift. She testified that she anticipated a slow
night at the Maestro. She knew if it was slow, she would
be allowed to leave early, and if she had been released at
10 p.m. she could have gone to mass.
In 1980, Pillitteri had spoken to Katz about drawing
up a seniority list for the purpose of choosing shifts and
days off. The two discussed the subject several times in
1980 and 1981. Seniority was an important issue to Pillit-
teri and she mentioned it at the October staff meeting.
She also mentioned it to John Tree who was sympathetic
to many of her complaints. Pillitteri denied telling
Maxon or Tree that she felt that she would have the day
off on Christmas Eve 1981.12
Ls Pillitteri was a difficult witness to cross-examine. She tried to avoid
answering counsel's questions and constantly tried to change the import
of the questions. She often testified about union matters when the ques-
Continued
109
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Watson testified that he was on duty as host on De-
cember 24, 1981. Pillitteri was scheduled to report for
work at 5 p.m. At 4:50 p.m. Pillitteri called him and in-
formed him that she would not be working that evening.
Pillitteri said she had spoken to Barbara and had posted
a substitution sheet which nobody had filled in. She said,
"I have been invited out to my father's house for the
holiday, and, fuck it, I am going to go. And If Manny
wants to fire me, that's fine." Pillitteri went on to say
that she had seniority and that management should cover
her shift. Then Watson wished her a happy holiday and
they hung up. About 7:45 p.m., Watson informed Katz
about this conversation and, at the latter's request, put
the substance of the conversation in writing.
Watson testified that, if a waiter or waitress could not
report for work, he or she was required to notify the
host or to find a replacement. If this requirement was not
fulfilled, the employee would be terminated. Watson said
that, in extreme emergencies, management had excused a
waiter from covering an assigned shift. As an example of
an employee who was discharged for missing a shift,
Watson cited the case of Eileen Corrado who did not
work two consecutive shifts sometime prior to Pillitteri's
discharge. She was discharged for this according to
Watson. Watson believed that if Pillitteri had called and
had given a plausible excuse for her absence she would
not have been fired.
Eileen Corrado testified on the General Counsel's re-
buttal. She was employed from June 1980 to July 19,
1981, as a waitress. She testified that once in winter 1981
and again in April 1981 she did not cover a shift but that
she was not disciplined in any way. Watson discharged
her in July 1981, after the two had an argument over
cocktails in another restaurant. Katz told her that he
would not rescind the discharge because he had given
Watson authority to fire employees and he did not want
to undercut his authority. This testimony was not denied
and I credit it.
Watson was a confused witness who gave inconsistent
and shifting testimony on a number of topics such as the
scope of his authority at the Maestro and the circum-
stances of Corrado's discharge. Further, Corrado credi-
bly testified that she was not fired for missing a shift, as
Watson maintained, but because she had an argument
with Watson. Thus, I do not find that Watson is a credi-
ble witness.
Host Barbara Maxon testified that, on December 23,
she asked Pillitteri what her plans were for the holidays.
Pillitteri said she was staying in the city but would not
be at the Maestro. She told Maxon she had spoken to
Lawrence Watson and that she had been similarly absent
last year at Christmas. Pillitteri said that she had enough
seniority for management to cover her shift, and that she
would "wait and see if she had a job when she came
back or not." Maxon did not approve Pillitteri's plans.
tions directed to her were on other subjects, giving the impression that
she was determined at all costs to mention the Union repeatedly in her
testimony. Pillitteri pretended not to understand some questions so that
she could avoid answering them and she fenced with counsel constantly.
Her testimony was characterized by numerous shifts and changes. As a
result, I hesitate to rely on her testimony and I find that her credibility is
not very strong.
On December 24, Maxon told Katz about her conversa-
tion with Pillitteri and he asked her to put it in writing.
Maxon left the Maestro in August 1982, and was living
and working in California at the time of the trial. She
testified that, while she was working at the Maestro, she
cleaned Katz' house on her days off. A careful reading
of her testimony shows that the waitress was well pre-
pared by counsel. However, I cannot find any grounds
to discredit Maxon as the General Counsel would have
me do, and I have decided to credit Maxon's testimony.
Katz testified that he decided to discharge Pillitteri
after consulting with counsel. He fired her because she
did not come to work and issued a challenge, "I dare
you to fire me." Both Maxon and Watson related their
conversations with Pillitteri to Katz and after speaking
with counsel, Katz decided to terminate Pillitteri. Coun-
sel helped him formulate the discharge telegram.
Katz did not wait to investigate Pillitteri's absence
before terminating her because there was no honest mis-
take or misunderstanding involved. She had made an an-
noucement before hand, "Manny can go ahead and fire
me if he wants." When Katz had first heard about the
Union he had consulted labor counsel and he had been
advised to document everything that happened at the
Maestro. Once the Union came in all the rules changed.
He had to send telegrams and the "family" disintegrated.
Pillitteri had issued a direct challenge to him and she had
not talked to him about her desire to be absent before the
night of December 24 so that he was put on notice of it.
Katz recalled that Pillitteri spoke at the October staff
meeting and that she complained about communications
breaking down: She no longer felt comfortable, the place
was like a prison camp with no more comraderie. She
also alluded to a food problem, but Katz thought her
main complaint was about a breakdown in communica-
tions. Katz recalled that she got support in her state-
ments from her fellow workers. Katz said he would like
to talk to her later about her complaints and he also
asked why she stayed if it was as bad as all that. Katz
claimed that she was not angered by the criticisms ex-
pressed by Pillitteri and others at the October staff meet-
ing nor did he connect these criticisms with the Union's
organizing effort until he met with counsel, about a week
after receiving the Union's telegram. In response to my
question about the October staff meeting, Katz said that
he felt Pillitteri's comments were relevant and that "she
was right on target." He thought there was something
wrong with the Maestro.
Katz often heard at the Maestro that employees were
having a union meeting before the election. He received
his information from Watson, Tree, and the kitchen help.
He generally heard nothing about what occurred at these
meetings but once he was told that Burman had talked
about him. He was not told who attended the meetings
and, except for Richie Goode in the kitchen, he did not
know who had distributed the union cards. Katz once
saw a whole group leave Stevens' apartment after a
union meeting. By then, he had surmised who was for
the Union. Katz never thought Pillitteri was strong for
the Union.
110
MAESTRO CAFE ASSOCIATES
A number of witnesses testified about the union cam-
paign at the Maestro.'s When asked to name the most
active union supporters at the restaurant, including those
who solicited authorization cards and spoke out at meet-
ings, the witnesses named Stacy Liddell, Marian McDon-
ald, Arlene Monahan, Mary Lee Stevens, Janet Penny-
backer, and Helaine Koffler. None of the witnesses
named Pillitteri; indeed, the General Counsel does not
contend that she was in the forefront of the organization-
al campaign. Further, many of the witnesses called by
both the General Counsel and Respondent agreed that,
by the end of the campaign, it was generally known
which employees were strong supporters of the Union
and active in its behalf. The employees did not try to
hide their allegiance once the Union made its demand for
recognition; Mary Lee Stevens who lived next door to
the Maestro held several union meetings in her apart-
ment. At least one such meeting ended right before the
dinner shift and all the employees walked out of Stevens'
house together in full view of Katz who observed them
from his post inside the restaurant.
Pillitteri testified that the policy of Respondent was
that, if an employee wanted to miss a scheduled shift, he
or she had to cover the shift. Pillitteri said there were
times when she could not come in when she spoke to
management and was released from duty. On one occa-
sion when she was sick with a high fever, she called
Tree and told him she would not come in because she
was very sick and he excused her. During the same ill-
ness, Katz released her from duty one night even though
she had not obtained a substitute. Several other times, ac-
cording to Pillitteri, various emergencies had prevented
her from working and she had been excused when she
telephoned the Maestro and explained that she would be
unable to work. The testimony of other witnesses ac-
cords with Pillitteri's summary of Respondent's policy
on covering missed shifts.14 Thus, I find that, contrary
to Katz' testimony, employees who missed shifts without
obtaining substitutes were excused in exigent circum-
stances or if they had telephoned the Maestro before the
shift and had been excused by one of the managers.' 8
Other witnesses, for example McDonald, stated that they
had apologized to Katz and had been warned when a
scheduled shift was inadvertently not covered by a sub-
stitute.
I also find that the waiting staff knew that it was im-
portant not to miss a scheduled shift and that it was nec-
essary to obtain a substitute. Arlene Monahan, a witness
called by the General Counsel, testified that she had
been told by managenent that an employee who did not
t The witnesses whose testimony I rely on in this connection are
Marian McDonald, Helaine Komer, Richard Goode, and Mary Lee Ste-
vens.
'4 Among the witnesses whose testimony I credit in this regard are
Burman, Stevens, Reed, Koffler, and McDonald.
" I also find inaccurate, and thus do not credit, the testimony of Katz
and Watson that a number of employees were discharged for failing to
appear for a shift without having obtained a substitute. Many of the em-
ployees named in this connection were short-term employees and Re-
spondent could not furnish any details as to their termination nor could it
establish exact dates of hire and discharge for the employees. Moreover,
quite detailed testimony as to the discharge of Corrado was shown to be
inaccurate.
cover a shift could be discharged. Pillitteri tried for
weeks to find a substitute for December 24. Other wit-
nesses, for example McDonald, stated that they had
apologized to Katz and had been warned when a sched-
uled shift was inadvertently not covered by a substitute.
The General Counsel, conceding that Pillitteri was not
a leading activist, does not contend that she was dis-
charged for any organizing activities. However, the Gen-
eral Counsel urges that, because Pillitteri made a speech
at the October staff meeting about poor working condi-
tions and because Katz received a demand from the
Union a week or two after the speech, Katz must have
connected the two events and concluded that Pillitteri
was involved in bringing the Union to the restaurant.
Thus, when Katz discharged Pillitteri at the end of De-
cember, according to the General Counsel, his motive
was that she had engaged in concerted activity and she
was connected somehow to the union campaign. '
In reaching a decision whether Pillitteri was dis-
charged for her protected activities, I have been aware
of the difficulties posed by the fact that the testimony of
the major witnesses was not very reliable. After weigh-
ing all the testimony and evidence, and considering the
probabilities, I have concluded that the General Counsel
has not shown a connection between Pillitteri's com-
ments at the October staff meeting and her discharge for
missing a scheduled shift on Christmas Eve later that
year. Pillitteri herself testified that Katz remained friend-
ly in his attitude toward her and the other employees
after the staff meeting; his attitude became formal and
withdrawn after the Union's telegram a week later. All
the witnesses agree that Pillitteri was not known as a
strong union supporter. Other employees who were very
active in soliciting support for the Union were not dis-
charged or disciplined in any way. Approximately 10
weeks elapsed between Pillitteri's speech and her dis-
charge, long enough for Katz to realize that Pillitteri
was not the cause of the Union's presence at the Maestro
and long enough for any resentment he may have felt at
her remarks to be subsumed in whatever feelings he had
about the union effort in general. Moreover, even if I
were to find that Katz discharged Pillitteri in part be-
cause of her protected activity, I would also find that the
discharge would have taken place in any event, even in
the absence of such activity. ? Pillitteri decided to absent
herself from work on Christmas Eve 1981, in violation of
a well-established policy requiring her to obtain a substi-
tute. She knew that she was treading dangerous ground
yet she told Maxon that management should cover her
shift and that she would see if her job still existed when
she came back. Pillitteri also called Watson and told him
that, although she was not sick and had no other excuse,
she was not coming in. The evidence shows that Mae-
'G Citing Superior Mkiro Film Systems, 201 NLRB 556, 562 (1973);
System Analyzer Corp., 171 NLRB 45, 50 (1968).
1" NLRB v. Transportation Management Corp., 103 S.Ct. 2469. (1983).
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (Ist Cir. 1981),
cert. denied 455 U.S. 989 (1982).
's I credited only so much of Watson's testimony as agrees with Pillit-
teri's version of the events.
111
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stro employees were excused from missing shifts in case
of illness or other situations where the absence was not
willful. Here the absence was both premeditated and
willful, and I believe Katz would have fired Pillitteri
even if there had been no union campaign.
G. Alleged Statements by John Tree
After the first union meeting at Stevens' house in early
November, according to Pillitteri, Tree said to her, "So,
you people think you're all being so smart, don't you,
about this union thing? . . . you should know there's a
spy in your ranks because Manny knew all about that
meeting you had today." Tree said Katz had asked him
why he had not informed management about the meet-
ing. One week later, Tree told Pillitteri that the head
busboy was being paid to spy on the Union. Later, Tree
told Pillitteri, "We all know that you and Janet started
the union." Pillitteri testified that she was friendly with
Tree and saw him socially with his girlfriend. She often
was a guest in his apartment.
On cross-examination, Pillitteri gave a totally different
version of these conversations; she quoted Tree as saying
that Katz was paranoid and believed that Tree was talk-
ing union with the waitresses. Tree told Pillitteri that
spying was unfair and that she should not have to look
over her shoulder. Pillitteri never discussed the union
meetings with Tree. However, before the authorization
cards were signed, Pillitteri voiced complaints about the
Maestro to Tree and Tree mentioned that he had worked
at union establishments and that unions could provide
benefits to workers.
Richard Goode, a chef at the Maestro until June 1982,
testified that he knew Tree socially. They partied togeth-
er. They went out together before and after the union
campaign, as did many other staff members. Tree often
sided with the employees in discussing management poli-
cies. Tree sent Goode drinks while he was working in
the kitchen even though this was forbidden by manage-
ment, and he got Goode his next job after the latter left
the Maestro. I do not find that Pillitteri's testimony
about Tree's alleged statements is reliable. Not only did
Pillitteri contradict herself in giving this testimony, but
she was extremely reluctant to answer counsel's ques-
tions on cross-examination and gave the impression of
giving answers based on a whim and not on her recollec-
tion. As a result, I do not find that Tree made the state-
ments attributed to him by Pillitteri.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act
when it coercively interrogated its employees.
4. Respondent violated Section 8(a)(1) of the Act
when it warned its employees not to discuss the Union at
work.
5. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
6. No other violations of the Act were committed.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. Respondent, having
sold its business, should be ordered to mail notices to
those employees who were employed at the time the
unfair labor practices found herein were committed.
On the foregoing findings of fact and conclusions of
law and on the entire record, I issue the following rec-
ommended 9
ORDER
The Respondent, Maestro Cafe Associates, Ltd., New
York, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating employees about their
union activities.
(b) Warning employees not to discuss the Union at
work.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Mail to the last known address of each employee of
the Maestro Cafe employed during the months of Octo-
ber, November, and December 1981 and January 1982
copies of the attached notice marked "Appendix."20
Copies of the notice, on forms provided by the Regional
Director for Region 2, after being signed by Respond-
ent's authorized representative, shall be mailed to the em-
ployees above described immediately upon receipt there-
of. Proof of such mailings, with the names and addresses
of the persons to whom the notices were mailed, and the
date of such mailings, shall be furnished to the Regional
Director for Region 2 within 5 days after such notices
are mailed.
(b) 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 ALSO ORDERD that the complaint be dismissed in-
sofar as it alleges violations of the Act not specifically
found.
"' 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.
'o 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
112
MAESTRO CAFE ASSOCIATES
APPENDIX
NOTnCE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT question our employees concerning
their union activities.
WE WILL NOT warn our employees not to discuss the
Union at work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
rights guaranteed by the Act.
MAESTRO CAFE ASSOCIATES, LTD.
113