Magic Island, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1024 (N.L.R.B. 1985)

1024 - DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
Magic Island; Inc. and Hotel and Restaurant Em-
ployees and Bartenders Union ,- Long Beach &
.Orange County . Local 681 , Hotel -and Restau-
rant Employees • and Bartenders International
Union , AFL-CIO. Cases 21-CA-21978, 21-
CA-22101; 21-CA-22118, and 21-RC-17143
30 September 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON'
On 29 June 1984 Administrative Law Judge Clif-
ford H. Anderson issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed a reply brief. i
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,2 and
conclusions3^ and to adopt the reccommended
Order4 as modified. s
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as' modified below and orders that the Re-
sporiderit, Magic Island, Inc., Newport Beach, Cali-
fornia, its officers, agents, successors, and assigns,
shall take. the action set forth in the Order as modi=
fled.
Insert the following as paragraph 1(g) and relet-
ter the subsequent paragraph.
i We deny the Charging Party's motion to strike the Respondent's ex-
ceptions -
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an' administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings '
In the first sentence of-sec V the judge inadvertently referred to the
Respondent's rather than the Petitioner's objections, in the same para-
graph the judge listed Objection 2 in the objections he 'sustained, al-
though it is clear from the next sentence that he did not address Objec-
tion 2 ; and in the next paragraph the judge inadvertently referred to 15
March rather than 25 March 1983 as the election date We correct these
inadvertent errors
8 Although the judge analyzed all of the Respondent 's unlawful state-
ments pursuant to Rossmore House, 269 NLRB 1176 (1984), we note that
Rossmore House set forth the standard for analyzing interrogations only.
Member Babson concurs in the finding of the 8(a)(1) interrogations, but
finds it unnecessary to pass on the judge's discussion of the application of
Rossmore House.
4 In finding a bargaining order appropriate , Member Dennis relies on
her concurring opinion in Regency Manor Nursing Home, 275 NLRB 1261
(1985)
5 We conform the recommended Order to the judge 's findings and
conclusions
276 NLRB No. 107 -
"(g) Suspending and discharging employees be-
cause they engage in union activities."
IT IS FURTHER ORDERED that - the election in
Case 21-RC-17143 be set aside and that Case 21-
RC-17143 be dismissed.
Salvador' Sanders, Esq., of Los Angeles, California, for
the General Counsel.
Jorn S. Rossi, Esq., of Newport Beach, California, for the
Respondent.
Richard J. Cantrell, Esq. (Cantrell, Gree, Pekich & Zaks),
of Long Beach , California, for the Charging Party.
DECISION .
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard these consolidated cases in trial on December 12,
1983, January 23, 24, 25, 26, and 27 , 1984, in Los Ange-
les, California . The matter arose as follows : On February
15, 1983 , Hotel and Restaurant Employees and Bartend-
ers Union , Long Beach & Orange County Local 681,
Hotel and Restaurant Employees and Bartenders Interna-
tional Union , AFL-CIO (the Union or the Petitioner)
filed a charge docketed as Case 21 -CA-21978 against
Magic Island , Inc. (Respondent or the Employer). On
April 1, 1983, the Acting Regional Director for Region
21 of the National Labor Relations Board issued a com-
plaint and notice of hearing concerning that case. On
March 23 , 1983, the Union filed a charge docketed as
Case 21-CA-22101 , and on August 12, 1983 , amended
that charge , against Respondent . On March 29 , 1983, the
Union filed a charge docketed as Case 21-CA-22118,
and on August 10, 1983 , amended , that charge , against
Respondent. On September 8, 1983 , the Regional Direc-
tor issued an order consolidating cases and consolidated
amended complaint and amended notice of hearing with
respect to the three cases.-'
On Feburary 15, 1983, the Union filed a petition dock-
eted as Case 20-RC-17143 seeking to represent certain
employees of Respondent . Pursuant to a Stipulation for _
Certification Upon Consent Election executed by the
parties - and approved by the Regional Director for
Region 21 of the National Labor Relations . Board on
March 4, 1983, an election by secret ballot was conduct-
ed on March 25, 1983. The ballots 'challenged during the
election were sufficient to affect the results. Subsequent-
ly, the Union filed timely objections to the conduct of
the election . On October 20, 1983 , the Acting Regional
Director issued a Report on Challenged Ballots and Ob-
jections and an order directing hearing and notice of
hearing with respect to the above-captioned representa-
tion -case . The Acting Regional Director decided, inter
alia, that , following his resolution of certain challenges,
there were insufficient remaining valid but uncounted
ballots to affect the results of the election . The Acting
Regional Director further found that certain of the
Union's objections raised issues of facts which could best
be resolved at a hearing to be held in conjunction with
the hearing on the allegations in the consolidated amend- .
ed complaint. On November 16, 1983 , the Board sus-
MAGIC ISLAND, INC
tained the Regional Dtrector 's.Report on Objections and
Challenges and directed that certain of the Respondent's
objections be processed pursuant to the Regional Direc-
tor's order and notice of hearing.
The amended consolidated complaint alleges that Re-
spondent , during the course of an election campaign, en-
gaged in numerous violations of Section 8(a)(1) of. the
Act and discharged and suspended employees in viola-
tion of Section 8(a)(3) of the Act. As part of the request-
ed remedy for the aforementioned -conduct , the General
Counsel seeks an order that , Respondent recognize and--
bargain with the Union concerning employees in an ap-
propriate unit . The Union' s objections essentially track
the allegations contained in the complaint . Respondent
denies that it has engaged in any violation of the Act or
that any objectionable conduct occurred . Respondent
further argues that , even if some violations of the Act be
found , under no circumstances would a bargaining order
be appropriate.
All parties were given full opportunity to participate
at the hearing , to introduce relevant evidence , ' to call,
examine, and cross-examine witnesses , to argue orally,
and to file posthearing briefs.
On the entire record herein, including briefs from the
parties, and from my observation of the witnesses and
their demeanor , I make the following -
Counsel for Respondent made two initial motions which were denied
by me at the heanng -and merit comment here First, counsel for Re-
spondent indicated that Respondent had filed certain charges against the
Union which had been dismissed by the Regional Director with the dis-
missals sustained by the General Counsel on appeal Respondent sought a
continuance of the instant proceeding so that it could-consider filing ad-
ditional motions concerning those charges or, in the alternative, to initiate
an action in Federal distnct court I denied Respondent's motion for a
continuance on several grounds First, I am aware of no Board law or
other authority requiring mandatory joinder of arguably related unfair
labor practice cases Second, to grant a postponement at a time when the
arguably related cases had already been dismissed and an appeal of the
dismissals sustained by the General Counsel, would be to postpone the
instant case on the highly speculative grounds that either a reconsider-
ation by the General Counsel or a successful district court action initiated
by Respondent would reinstate these cases Finally, and most important-
ly, there was no showing by Respondent that without the postponement
and eventual joinder of cases, Respondent would be denied the opportu-
nity to adduce evidence relevant to the instant cases Respondent did not
offer, and therefore was never denied, an opportunity to place in evi-
dence any evidence of union misconduct, thus no' prejudice could have
resulted from the denial of the postponement motiori
Counsel for Respondent also moved that counsel for the General,
Counsel be disqualified from. prosecuting the instant action Counsel for
Respondent's theory was that counsel for General Counsel Sanders par-
ticipated in the investigation of both the instant charges and the charges
filed by Respondent against the Union Respondent in effect argues that
this was an improper mixing of the investigative and prosecutional func-
tions of the Board I denied Respondent's, motion The administrative
Procedures Act, 5 U S C § 554(d) states
An employee or agent engaged in the performance of investiga-
tive or prosecuting functions for an agency in a case may not, in that
or a factually related case, participate or advise in the decision, rec-
ommended decision, or agency review except as witness or
counsel in public proceedings -
The Board in Iron Workers (United Exposition Service), 252 NLRB 394
(1980), notes that Sec 554(d) of the Administrative Procedures Act "re-
quir'es the separation of investigatory and prosecutorial functions not
from each other but from the decisionmaking function " Thus, as in that
case, it is not impermissible for an attorney for the General Counsel to
investigate and prosecute particular cases See also Willett Motor Coach,
227 NLRB 882, 887 In 5 (1977), and the very recent Board case, Spartan
Plastics, 269 NLRB 546 (1984) - -
FINDINGS OF FACT
1025
1. SERVICE OF THE- CHARGES .
Respondent in its answer denied service on it of the
charges and amended charges but did not otherwise con-
test their service at the hearing or on brief. The General
Counsel entered into evidence signed returned post office
receipts - for each charge and amended charge which,
pursuant to Section 11(4) of the Act,2 I find sufficient to
prove said service. .
II. JURISDICTION
Respondent, a California corporation, is engaged in the
business of operating a private club and restaurant in
Newport Beach, California. Respondent during the
course of its business operations annually enjoys gross
revenues in' excess of $500,000, exclusive of membership
fees, and annually purchases and receives goods valued
in excess of $1500 directly from suppliers located outside
the State of California.
III. LABOR ORGANIZATION
The Union is a labor, organization within the meaning
of Section 2(5) of the Act.
IV. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Chronology
Respondent operates a private membership club in
Newport Beach, California, where it provides food, bev-
erage, and entertainment services to its members and
their guests. The facility is decorated and its entertain-
ment is performed in a magic theme. As part of its em-
ployment complement, Respondent. employs various
dining room, cocktail lounge,- and kitchen employees.
At relevant times Respondent's president was Michael
Callie and its executive' vice president was Stephen
Schwartz. Randy. Laight was manager, Toss Popoulis,
assistant manager, and Wayne Yost, commencing Febru-
ary 1, 1983, was the dining room manager. Robert Lucas
was beverage manager, Respondent's executive chef was
Rudy Jiminez. No serious dispute existed at the conclu-
sion of the hearing that these individuals each possessed
and exercised one or more of the indicia of supervisory
authority set forth in Section 2(11) of the Act and were
therefore at relevant- times supervisors and agents of Re-
spondent.3 -
In early February 19834 waiter-employee Michael Pe-
terson contacted the Union and as a result an organizing
campaign was undertaken concerning the, food and bev-
erage employees with the waiters assuming the leader-
2 Sec 11(4) of the Act states in part
Complaints, orders and other process and papers of the Board
may be served . by registered mail [T]he return post
office receipt . shall be proof of service of the same
2 On November 16, 1983, the Board adopted the earlier recommenda-
tions of the Regional Director's Report on Challenged Ballots which
found, inter alia, that Robert Lucas and Toss Popoulis were supervisors
within the meaning of Sec 2(11) of the Act
4 All dates hereinafter refer to 1983 unless otherwise noted
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ship role.5 Employee meetings were held at which union
authorization cards were solicited and received. By letter
dated February 8, 1983, the Union informed Respond-
ent's management that an organizing drive was under-
way and identified certain of the employees'as members
of an organizing committee. a By letter from the Union
to Respondent dated February 10, 1983, additional em-
ployees were announced as participating in the organiz-
ing committee, including, inter alia, Brian Hemphill, Mi-
chael Mazzone, and Alison Myer
After obtaining numerous authorization cards, the
Union filed its petition on February 15, 1983. On March
3, 1983, the Regional Director approved a Stipulation for
Certification Upon Consent Election (election agree-
ment) between the parties, which recited that the follow-
ing was an.appropriate collective-bargaining unit:
All dining room, cocktail lounge -and kitchen em-
ployees, including waiters, waitresses, cooks, chefs,
buspersons, bartenders, barbacks, dishwashers, hosts
and hostesses employed by the Employer at its fa-
cility located at 3505 Via Oporto, Newport Beach,
California; excluding all other employees, office
clerical employees, parking lot attendants, magi-
cians, guards and supervisors as defined in the Act.
Pursuant to the election agreement an election was con-
ducted in the unit,on March 25, 1983.
The alleged unfair labor practices at issue herein oc-
curred during the organizational period and the conduct
alleged to be -objectionable occurred between the filing
of the petition and the, election.
B. Testimony Concerning Allegations of Independent
Violations 'of Section 8(a)(1)
In paragraph 8 of the amended consolidated com-
plaint,7 the General Counsel alleged numerous incidents
throughout the organizing campaign as violative of sec-
tion 8(a)(1) of the Act. This conduct is attributed to Re-
spondent's : agents Schwartz, Callie, Yost, and Popoulis.
Testimony 'concerning the various contentions will be
addressed on an agent-by-agent basis seriatim.
1.'Stephen Schwartz
Former waiter Marc Ottestad testified that he had a
conversation on the evening of February 5, 1983, with
Schwartz in the presence of fellow waiters R. Michael
King and Taras Young. During the course of the conver-
sation, initiated by King, discussion turned to various
problems ,at the facility. Schwartz stated that, he heard
there was going to be some kind of union organizing by
the. waiters, "that he knew everything that was going on
in the club and that we should stop that nonsense and
leave everything to him." Schwartz continued in Ottes-
tad's testimony stating that he knew waiter employee Mi=
chael Peterson was having a meeting to get the waiters
5 The waiters perceived themselves to have been adversely affected by
a recent management decision to redistribute tip income at the facility
6 Employees 'so named included Mark Armitage , R. Michael King,
Scott Mooney, Marc Ottestad ,"Michael Peterson , and Taras Young
7 On brief the General Counsel moved to delete par 8 (e) of the com-
paint The motion is granted.
to strike and that the employees should assist him in
stopping the matter before there was trouble.
Scott Mooney, a busboy with. Respondent until late
1983, testified that soon after his name was communicat-
ed to Respondent as a union committee member he was
approached by Schwartz at the restaurant. Schwartz
asked him if he had gone to the union meeting, adding
that he had noticed Mooney's name on the union com-
mittee member roster. Schwartz further asked if Mooney
had signed a union authorization card. When Mooney
said that he had, Schwartz sought to determine'if he had
been forced to sign the card. Mooney- answered he had
not been forced to sign the authorization card and that
he thought it had been a good idea.' Schwartz then re-
sponded in Mooney's recollection, "Well, you can be
damn sure that you will be down to minimum wage real
quick," at which point Schwartz walked away ending
the conversation.'
Former waiter Mark Armitage testified that on Febru-
ary 8, 1983, Schwartz came over to Ottestad while he
was working, pointed his finger at Ottestad and said,
"You fucked with the wrong guy." Ottestad responded
that he could "believe it" and the conversation ended.
He further testified that -he overheard Schwartz talking
to busboy Robert Price in the kitchen on or about Feb-
ruary 9 or 10. Schwartz asked' Price what he thought
about the Union and how he was going to vote. Price
did not answer but rather looked uncomprehendingly at
Schwartz and the conversation ended. Price did not testi-
fy. Armitage also testified to an additional conversation
with Schwartz on or about' February 9 early in the
evening in the kitchen.. He testified that Schwartz asked
John Harrington, a sous chef, if he was going to join the
Union. Harrington responded in the negative.
Peterson testified that on Sunday, February 13, he
'served dinner to Schwartz, Callie, and other guests.
During the meal, in the presence of Peterson, the guests
in some humor toasted Samuel Gompers and made simi-
lar trade union allusions. They told Peterson that his
service was slow. Peterson testified that Callie turned to
Schwartz during the meal and said he thought it was
about time Respondent hired additional waiters and that
Schwartz replied, "Yeah, then we can get rid of them all
and start them all over at seven percent." Callie then re-
sponded, "Well, then we can just go-ahead and get some
busboys and start them-include them in the tip pool _
also." Schwartz then rejoined suggesting that it was
"about time the waiters had d-a vacation anyway." Callie
responded that perhaps 52 weeks' vacation would serve.8
On February 11, 1983, Schwartz distributed a memo-
randum to all employees which stated:
'Over the past few weeks I am sure that it is clear
to most of you that some of bur employees [Waiters]
have elected to institute the organization of a union.
They would lead you to believe that they are -
making less than an adequate wage scale. Some
8 The waiters received a percentage of the restaurant's gross revenues
which , despite a recent reduction , remained well in excess of 7 percent
Busboys had not been included in the "tipping pool" but rather had been
compensated directly by individual waiters at a lesser rate
MAGIC ISLAND , INC 1027
have indicated that they are currently unable to
support themselves on their current earnings.
Our- newly -designed restaurant management
system reduces their share of the tip pool by 1%
which will be going to the captain . What they
didn 't tell you is that with: the use of a captain
system , all sales by the captain -will be credited to
them , which we are convinced will more than make
up for the 1% reduction.
I have taken the time to compute - per our last pay
period .the average hourly rate of the waiters. I was
surprised to find that the average wage per. hour
was $20 . 17. I am sure that many, of us would be
happy with this figure on our checks . Furthermore,
this amount does not include any cash tips the
waiter may have received.
I have also had the opportunity of visiting the,
Balboa Bay Club, which is the only real entity lo-
cally unionized by the same - union . Most of the em-
ployees that I talked to are extremely unhappy with
this union since they feel that nothing other than in-
surance is really offered to them . By the , way, be-
cause of poor insurance handling , the employees of
the Bay Club are currently organizing -to try to-be
rid of this union - insurance program . Unfortunately,
they are stuck with the union contract for another
two years. - - -
Please investigate things regardless of any prom-
ises you may hear. If you feel that you are being in-
timidated by anyone to sign anything , please advise
your supervisor , as we will take all legal remedies
to curtail this activity.
On -February 14, 1983, Schwartz distributed a memo-
randum to all busboys which stated: -
It'has - come to my attention that -many of you do
not feel that you are getting a fair share as a tip-out,
from the waiters each night. -
It is customary that you receive in excess of ten
percent of the waiters nightly tip . So that you can
be compensated justly, we will be posting each
waiter's portion of the tip pool, the day following.
If you are not getting tipped -out properly by the
waiters, Magic Island , for your protection , will be -
forced to • automatically deduct from the waiters 'a
fair percentage to be given to you. It is our sincere
'desire that you do not suffer finanically because of
the misrepresentation and greed of a few people.
Simply stated , we want you to get a fair deal.
On February 19, 1983 , a meeting was held , at the initi-
ation of employees , in Schwartz ' office. Present were
Randy Laight, Stephen Schwartz , Hector Cervantes,
Taras Young, Alison Myer, R. Michael King , and Marc'
Ottestad . Ottestad testified that Schwartz told the em-
ployees that he' had intentionally made working condi-
tions tense and uncomfortable at the facility because the
employees were making him tense and uncomfortable by
their union organizing activity. He recalled further that
R. Michael King'asked Schwartz if his - recently received
reprimand was heavy -handed and that Schwartz 'replied
that it was. Schwartz -then continued that "no matter
how. this turned out ," Ottestad "had a hard road to go."
Working conditions ' were discussed with Schwartz who
pointed out that ' the tip pool was a "piece of pie" and
that there were sufficient funds so that the pool could be
allocated in a way which would satisfy everyone. He
pointed out that employees did not need a "third party"
but that if the-employees tried to bring in the Union as a
third party he would not negotiate but would "sit there
and smile and act as if he was negotiating but that he
wouldn 't." Schwartz continued in Ottestad 's recollection,
that he ' needed to know the employees ' decision quickly'
because he had-already contacted an attorney . Employ-
ees were to answer as soon as possible whether , or not
they would drop the union organizing .and deal with him
personally . Schwartz pointed , out that the campaign to
that point had cost him a lot of money which bothered
him.
R: Michael King testified that at this meeting
Schwartz did most of the speaking .- King recalled
Schwartz started out by saying that his "union busting'g,
lawyer" had already recommended that Young and
Myer be fired . He continued that no matter "what road
[Marc ' Ottestad ] takes , it's going to be a long one." He
suggested the employees would take a, "pretty dumb-
road , chose a pretty weak union , but there was no way
he could work -out the problems there because his hands
were tied because of the union." King testified that he
asked Schwartz if his reprimand was warranted or just a
"heavy handed tactic" at which point Schwartz respond-
ed: "What can . I say? It was a' heavy -handed tactic."
Schwartz continued saying that , if employees - would be
patient , they would have insurance and have all their
grievances -settled but not with the Union there. As long
as the Union was in the background, Schwartz"hands_
were tied and. he refused to work out any settlement.
When it came down to bargaining Schwartz said that he-
would just sit and smile and act like he was bargaining in
good faith without doing so and that , if the Union did'
come . in, employees - would have more work conditions
with less job security and lower wages. --
Myer, who testified regarding other matters , did not
address this meeting . Taras Young did not testify:
Randy Laight testified that he was present at the meet-
ing at the request of Schwartz who wanted' a manage-
ment witness to-the proceedings:• Laight recalled that the
waiters wanted to, discuss . their 'grievances and, after a
brief discussion , Schwartz said that he could not com-
ment because of a letter he had received from the Union.
When the waiters continued to voice their grievances-
Schwartz reasserted he could not discuss them. Laight
specifically denied that Schwartz in any way labeled his
reprimand of King as a' "heavy-handed tactic" or any-
thing of the kind. - - -
Hector Cervantes , then a waiter , but as of ' the time of.
hearing Respondent's assistant manager , testified that the
February 19 meeting was designed to try to solve-the
problems and ' grievances of the `• employees by sitting
down . with management .. Cervantes recalled the meeting
started with Marc `Ottestad, on behalf of the employees,
describing perceived problems. - He further recalled that
Schwartz said he was there only to listen and could not
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
say anything because of a union letter he had received.
Schwartz indicated, however, that, he was willing to
listen to what the employees had to say. Cervantes re-
called. that there was a dispute at this meeting regarding
what insurance coverage the waiters then enjoyed. At
least one waiter contested Schwartz' assertions that they
were covered by insurance and that Schwartz then pro-
duced documents with specifics regarding such cover-
age. Cervantes recalled no further details of the meeting.
However, Cervantes, as the other employees left, testi-
fied that employees ' King and Ottestad expressed great
hostility to Schwartz asserting "he tried to tell us lies"
and expressed a desire for retribution against Schwartz.
Schwartz testified that he did not initiate-the February
19 meeting but that he agreed to hold it. He had Randy
Laight present because he had the feeling that since the
union organizing committee employees would be present,
it might be necessary to. have a witness. Schwartz did
not testify directly concerning the substance of the meet-
ing but rather adopted Laight's earlier testimony regard-
ing- it. .
On March 25, '1983, following the balloting and an-
nouncement of the results, Schwartz and Ottestad had an
altercation in •a hallway at the facility. Testimony regard-
ing the event was simple, direct, and .diametrically op-
posed. Schwartz testified that, while passing Ottestad in
the hall, Ottestad braced him against the wall for a few
seconds and then continued on. He further testified that
this event was witnessed by Respondent's employee Mi-
chael Scott. Scott' generally corroborated the testimony
of Schwartz and asserted he was the only witness to the
event. -Ottestad testified that he, rather than Schwartz,
was the victim of the assault and battery and that there
was but ,a single witness to the event, Michael King.
King corroborated the account of Ottestad and also testi-
fied that he was the only witness to the occurrence.
Schwartz denied violating the Act in any manner al-
though he acknowledged generally that he did- have oc-
casion to discuss union activity with employees in Febru-
ary and March. 1983.9 With respect to the testimony con-
cerning Robert Price, Schwartz denied knowing Price or
speaking to him -about the Union or his vote. Schwartz
specifically denied having a conversation - with King,
Young, and/or Ottestad in. which he said that they
should stop Michael Peterson from union organizing ac-
tivities . Schwartz did recall a conversation which he be-
lieved was with employee Taras Young in which he
asked, "Is there a union organization going on?" He re-
called that Young answered that he had had no knowl-
edge of such activities. Schwartz further denied any con-
versation with employee Harrington in which he said he
knew the waiters had been holding union meetings and
soliciting union authorization cards from cooks and dish-
washers.
2. Michael Callie -
Other than the Feburary 13, 1983, dinner conversa-
tions with Schwartz and Waiters King and Young, dis-
9 Answering leading questions by counsel for Respondent tracking in
haec verba the allegations of the complaint , Schwartz serially denied the
allegations against him -
cussed supra, the bulk of allegations against Callie re-
volve around incidents occurring on March 16 and after.
Ottestad testified • that on March 16 in a series of meet-
ings , initially in the kitchen and in the presence of the
kitchen staff and other employees, Callie pointed at Ot-
testad and, using a variety of four-letter words,- verbally
attacked him and called him a troublemaker. The con-
versation was briefly interrupted but then continued with
Callie sticking his finger in Ottestad's face calling him a
variety of crude words and noting that Ottestad was
going to "find trouble for all this trouble you caused
me." Ottestad responded that he was not trying ' to cause
trouble but rather sought "fair representation." After a
time Callie's cursing ceased and he went "storming
away." Later that same-evening Ottestad was in the press
ence of busboys Graham Cross and Greg Buck when
Callie "again -verbally attacked Ottestad. The interrupted'
conversation had dealt with tipping busboys. Callie al-
leged Ottestad was "ripping off the busboys" and his
abusive epithets continued at length. Gregory Buck testi-
fied that he was present in the kitchen on March 16 in
the early evening when Callie began his verbal attack on
Mark Ottestad. • He testified that Callie said , "Mark, I
hope you are real secure in your job." What is your wife
going to do?" He then engaged in a tirade involving ob-
scene and insulting epithets for 15 to 20 minutes. Buck
testified he was also. present along with other employees
at the ,evening confrontation between Callie and Ottes-
tad. 'Buck -testified that Ottestad was calculating the
evening tips when Callie approached and again chal-
lenged Ottestad by saying, "You think you are going to
run this place. Well I have invested too much time and
money to let a little cocksucker like you run it.for me."
Ottestad replied, in Buck's recollection, "I didn't say
that. All I'm trying to do is get fair labor practices in the
restaurant." Callie • continued telling Ottestad, "I hope
you are real secure with your job.here," and continued
his verbal abuse.
Buck further testified that, soon after ' this -confronta-
tion, Callie had occasion to speak to Buck and two other
busboys, Graham Cross and Johnny Lawrence, alone.
Buck testified, that Callie
[T]old us that the waiters were upping off the bus-
boys and . . . that he was sick of it and that he
promised us we'd start making more money, that
the tips would get better as soon as all the union
bullshit was through. He told us that if the union
found out that he was telling us this, that he'd be in
a great big deal of trouble.
Buck testified the busboys asked Callie for a commit-
ment in writing that they would start making more
money and that -Callie responded that he could not give
it to them in writing but that he was planning a private
celebration or party which he believed would interest
the busboys and that they would be his special guests.
Graham Cross testified that he had a conversation
with Callie 2 or 3 days before the March 25 election
which, except for the date, corroborates earlier testimo-
ny regarding the evening confrontation between Callie,
and Ottestad on March 16. Cross recalled Callie was dis-
MAGIC ISLAND, INC.
traught and nervous and kept repeating "You are trying
to ruin me. I pumped so much money into this place,"
along with coarse language and other abuse directed at
Ottestad. Cross also specifically recalled Callie asking
Ottestad, "What's your wife going to do, how stable is
she?" Cross further corroborated Buck's testimony re-
garding the subsequent conversation between Callie,
Buck, Cross, and Lawrence. Cross testified that Callie
told the busboys that the waiters were cutting them out
of their fair share of-money and that the "money situa-
tion" would be better later. Cross recalled that-the bus-
boys attempted to get Callie's commitment in writing to
the financial increases but that Callie declined to put
anything in' writing, merely reasserting that it was a
promise. . .
Former waiter Brian Hemphill -testified that he was'
present at the confrontation between Callie and Ottestad.
Hemphill recalled Callie telling Ottestad that "the union
crap was ruining his restaurant and he didn't like it."
Hemphill further corroborated the general consensus of -
testimony that Callie's abuse of Ottestad was loud, con-
tinuous, and obscene.
Peterson testified to a conversation with Callie in the
presence of others on the evening of March 18. He testi-
fied that Callie speculated aloud that it was probably Pe-
terson and his "union thugs" who had beaten Lucas up.
Peterson informed Callie that he did not understand the
statement whereupon Callie accused Peterson of harass-
ing Robert Lu :as and, in an obscene manner, accused
Peterson of being a greedy waiter who was harassing the
busboys. Following extended abuse Peterson indicated
that he was going to leave, at which point Callie told Pe-
terson, "if you vote for this union, you are-going to be
back to minimum wage." - '
Michael King generally corroborated Peterson's testi-
mony that Callie in an agitated manner asserted, "This is
my club. I am tired of you ass-hole waiters trying to ruin
the atmosphere of this club. All you have done is make
the working conditions harder." He further recalled that
Callie told Peterson, "You will be fired-you will see
who is in power after 'the election." Following this con-
versation, King had an additional conversation in the
kitchen with Callie in which Callie again in strong lan-
guage attacked the waiters indicating that they had
"stepped on a live snake" and suggested "he had friends
in New York _ to take care-of ass-holes like me and my
thug friends." Callie again stated that they would see
who was 'in power after the election "that we didn't
have a chance to win, he already knew what the out-
come would be and that we would be fired the following
Saturday." -
Michael Callie by memorandum dated March 22, 1983,
solicited employees to vote against the Union in the up-
coming union - election. His written communication con-
tained the following two paragraphs:
Magic Island does not want to be union and I do
not think this union can do anything for you,' but
cost you money and make Magic Island a less desir-
able place to work. Just look how our working en-
vironment has deteriorated since a few greedy,
1029
trouble-making employees started crying the word
"union."
I am acutely aware, particularly now, 'of your
needs and wants and once the union is voted out, I
will be free to-work together with each of you to
make Magic, Island a career opportunity we want it
to be. .
Callie testified regarding the incident of March 16 in a
generalized way asserting that he "lost his cool" and be-
haved badly. Without specifics he indicated embarrass-
ment for his conduct on that occasion but asserted that it
was entirely an instinctive reaction to an anti-Semitic as-
sault on him by Mark Ottestad which included debasing
remarks about "kikes" and Jewish greed and parsimony.
Ottestad categoricaly denied making the anti-Semitic and
baiting remarks attributed to him by Callie. i ° Again
without specificity, Callie testified that after his loud
challenge to Ottestad in front of busboys that evening,
he met with the two busboys and apologized, telling
them essentially that _ there was a lot of pressure at the
restaurant at-that time and "let's hope things 'get better."
With respect to the other allegations against him,
Callie answered negatively a-series of leading questions
quoting in haec verba the allegations in the complaint
addressing his conduct.
3. Wayne Yost
King testified to several conversations with" Wayne
Yost, the first occurring on February, 16 or 17 in the
presence of Taras Young. On that occasion King re-
called Yost said Schwartz was angry about the union
problem, that the employees were "hurting ourselves, we
were going to make less money, have poorer working
conditions and that because of this, we will be black-
balled all over Newport Beach for being, you know, par-
ticipating with the union." Yost further asserted that
whether the election was won or lost, employees would
be fired the day after the election. He continued that
Schwartz would not bargain in good faith with the
Union and that any strike would be ineffective because
of lack of sympathy for picket lines in the area. King tes-
tified further that on March 12 or March 18 he had a
conversation with Yost, Peterson, Young, and Ottestad
in which Yost told the employees that they had "chosen
the long road, that with the union', he reiterated that we
would have bad working conditions again . . . he went
on to say that all of us would be fired the day after the
vote and that Stephen Schwartz would not bargain in
good faith."
Ottestad testified that on February 9 he had a conver-
sation with Yost in which- Yost suggested that the em-
ployees had selected • a poor or weak 'Union that would
be unable to support the- employees or do a good job for
employees. He continued, in Ottestad's recollection, sug-
gesting that "we made a big misiake in doing this be-
cause the reality was that Schwartz would never deal
10 Callie testified without contradiction that he was a Jew whose
family had suffered terrible losses in the holocaust He added that he was
completely unprepared for an anti -Semitic attack by someone he had
viewed until that time as a _trusted and respectful employee
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with anybody." Yost said employees would get less -pay
and again stated that Schwartz would not.negotiate with
anyone. Yost denied that he in any way violated the Act.
4. Toss Popoulis
Peterson testified ' that on March 18, 1983 , he over-
heard a one -on-one conversation between Toss Popoulis
and Susan Wixted , a waitress . Popoulis initiated the con-
versation asking Wixted , "if, she was_ voting for the
strike." Wixted responded ,that she was not going to say
anything about her vote . The conversation at that point
ended . Neither Popoulis nor-Wixted testified at the heai-
ing. - -
C. Testimony Concerning Allegations of 8(a) (3) and
(1) Violations .
1. The suspension of Alison Myer • -
Alison Myer at the beginning of 1983 had been a wait-
ress with Respondent for over a year . Until the events in
question she had neither received a verbal nor a , written
reprimand from . Respondent . On January 1-1, Myer omit-
ted to turn in certain - cash she had received from a wine
purchase and misplaced a customer check rather than
turning it into the cashier . For this conduct she received
a written reprimand dated . January .12,'1983 , signed "by .
Wayne Yost. Myer testified that she received this first
reprimand on January 19 from Yost at which - time they
had a discussion , regarding - company policy concerning
the turning in of moneys . There is no dispute that Myer's
conduct had been contrary to company policy or that
the,reprimand was improper .- In early February Myer
again received cash . for a wine purchase' and omitted to
turn it in to the cashier immediately following its receipt.
Yost, having learned of this rule violation , prepared a-
second written employee reprimand dated February 4,
1983.- Yost spoke to Myer , in her memory , on February 6
regarding the violation at which time they reviewed the
matter . Yost told Myer that . she had committed two of-
fenses 'in a 1-month period . He said this was very unlike
her and that , in order for her to learn company policy,
he would have to. issue her a second written reprimand.
There is no dispute that Myer 's conduct , in this second •
incident was also inconsistent with company policy.
Mark Ottestad testified -. that he had a conversation
about February 2,with Wayne Yost at which time Yost
asked him _ if he , could provide sufficient waiters for that
evening or in the near future without Alison Myer be-
cause Yost was. considering terminating her because she
had taken money intended to pay for wine and kept it as
a tip . Later that same - day, Yost again spoke to Ottestad -
in Ottestad 's testimony and told' him that "he decided
just to reprimand Alison , that she had paid for the wine
and felt that would be sufficient for her blunder." Yost
did testify concerning this conversation with Ottestad.
Myer testified that she was not scheduled to work on
February 10 or 11 but that on.-February 10 she was
called at home-by Yost and told to come in to the facili-
ty and speak with him . She arrived a short time later and -
met with- Yost: Yost told. herio come outside the' club
and there told her , "I am here to tell you that you have
been suspended for two weeks." In Myer 's memory Yost
went on. to tell her that she was an excellent employee
and that she would have been, fired if she had not been
such a valuable member of the staff. He noted however
that in. order for' her to learn -her lesson and to know
company policies, a 2-week suspension was in order.
Myer's name was not listed in the Union's Febuuary 8,
1983 letter to Respondent identifying. employees who-
were members of the Union's organizing committee.
Myer signed a union authorization card on February 8,
1983,, however, and agreed to , become a committee
member. The Union's February 10 telegram and letter
advised Schwartz of additional employees of Respondent
on the organizing committee including Alison Myer.
Myer served her 2-week suspension and thereafter re-
turned to work. She was subsequently terminated in late
1983. • - - - - '
2, Discharge of Mark Armitage
Mark. Armitage was employed by Respondent from
February 1982 until February 11, 1983, as an assistant
chef under the direction of Rudy Jiminez, Respondent's
executive chef. Armitage initially attended a union meet-
ing held in his apartment on February 7, 1983, and there
signed a union authorization card. Thereafter he solicited
various employees to sign union authorization cards at
work. Armitage's name was the first in the alphabetical
listings of employee names contained in the Union's Feb-
ruary 8 letter to Schwartz • identifying certain of Re-
spondent's employees who were members of the Union's
organizing committee. '
Armitage testified that Jiminez was not at work, ap-
parently through illness , - during this initial period of.
union activity but returned to work on February 10. On
that day Armitage commenced his regular shift , at the
normal time but. was sent home by Jiminez- about 7
o'clock in the evening based on Jiminez ' representation
that work was slow. The shift normally ended at 10 or
11 o'clock in the evening. This was in' Armitage's experi-
ence the earliest time that he had ever been sent home.
Armitage testified that 7 p.m. is too early.,in the.meal
service to fairly ascertain whether or, not his services
could have been dispensed with. Armitage further testi-
fied that Jiminez' behavior toward him on February 10
was unusually cold and distant and completely outside
his previous experience. Armitage testified, that when he
reported for work on February 11, Jiminez took Armi-
tage into the office and told him he had to "let you go" -
asserting because the two of them could not work to- .
gether and that Jiminez thought Armitage was not trying
to work with him. Armitage testified that he believed Ji-
minez was being ordered to terminate Armitage . He thus
asked, "Rudy, you are my friend. Why can't you just tell
me the real reason for you doing this?" Jiminez answered
in Armitage's recollection, "Well; you got to go over
next door and talk to Schwartz." Armitage then suggest-
ed that Jiminez- knew the real reason for _ his termination
was because of his, union organizing activities. -,Jiminez
denied any knowledge of that undertaking. Armitage
was then escorted to Schwartz ' office where Schwartz,
Jiminez ,- and Armitage had a conversation . Schwartz
MAGIC ISLAND, INC.
handed Armitage a termination letter listing the follow-
-ing as the reasons for termination:
1) Removing a case of Heineken beer from stor-
age.
2) Talking disrespectfully about the chef to other
Magic Island employees.
3) Talking disrespectfully about the chef in his
presence
4) Displaying a poor attitude about your work
and about other employees, managers and owners
of Magic Island.
5) Not being consistent in the quality of your
work.
6) Arguing with the assistant chef.
Armitage and Schwartz then discussed an incident in-
volving a case of Heineken beer: Schwartz told Armi-
tage that the beer incident was the reason that he was
being fired. Armitage' contended that the reason he was
being fired was because of the Union. Schwartz replied,
in Armitage's recollection: "I don't give a shit what you
think. You are shit, your union buddies are shit. I don't
care about you."
Earlier Armitage had concealed a case of Heineken
brand beer from Robert Lucas, beverage manager, as
Lucas was putting away delivered items. Armitage-al-
lowed Lucas to search for the missing item and, only
after some delay, withdrew it from its place of conceal-
ment. Armitage, corroborated by John Harrington, testi-
fied the events were manifestly a prank to upset Lucas
and was not an effort to take the beer. Lucas testified
that the event was rather an attempt to convert the beer
to Armitage's personal use, i.e., attempted theft, which
was uncovered only by Lucas' checking the inventory
carefully.
John Harrington, assistant chef, an employee of Re-
spondent from August 1981 until June 1983, testified to a
conversation between himself and Schwartz at the res-
taurant a couple of days before Armitage's termination.
Harrington testified that Schwartz told him that he knew
that Armitage was involved with the Union and that he
wanted to get rid of him. Schwartz then asked Harring-
ton how good a worker Armitage was. Harrington re-
sponded that Armitage was ,"okay." Schwartz continued
that he -wanted Armitage fired and he wanted Harring-
ton to start a fight or a dispute with Armitage so that
Harrington could fire him. Harrington indicated that he
did not want to fire Armitage and did not want to be put
into such a position, rather, he wanted Executive Chef
Jiminez to do it. Harrington told Schwartz to wait for
Jiminez to return to work and to have Jiminez fire Armi-
tage.
Harrington further testified to a conversation with Ji-
minez on the day that Armitage was discharged. He tes-
tified that Jiminez summoned him to his office and in-
formed him that Armitage was to be fired and that a
letter.or note was to be prepared stating the reasons Ar-
mitage was to be fired. He requested Harrington to write
down "some of the reasons why I thought Mark was
getting fired." In response to this, Harrington wrote on a
piece of paper that Armitage had been disrespectful of
Jiminez in the presence of others. He gave this paper to
1031
Jiminez upon its completion. Harrington then asked Ji-
minez why he was being asked to make the written com-
ments regarding Armitage. He recalled that Jiminez told
him that Schwartz and Callie wanted him to write down
the reasons that Armitage should be discharged.
There is no dispute that Armitage's relationship with
Jiminez was somewhat abrasive, challenging, and even
disrespectful concerning Jiminez' cooking procedures
and that Armitage had been so outspoken for many
months. There is no dispute that management *as early as-
Thanksgiving 1982 • had discussed Armitage's outspoken
and challenging behavior with respect to Jiminez and
had considered terminating him at that time. No such de-
cision was made however because the press of business
during the holiday period would not admit an easy re-
placement of the assistant cook. Yost summarized the
management decision taken at that meeting:
In that meeting-that we would just bite the bullet
and work throughout the holiday season, until after
the busy time had passed, which would had been in
the first week of January [1983], and make a deci-
sion-at that time as to which way we wanted to go.
There was no testimony regarding January 1983 delib-
erations if any were held regarding the question of
whether or not to terminate Armitage nor was there tes-
timony as to when, if at all, a replacement for Armitage
had been hired.
Jiminez did not testify at the hearing. Schwartz specifi-
cally denied Harrington's testimony regarding his alleged
attempts to conspire to terminate or cause the termina-
tion of Armitage based on a pretext. Rather, Schwartz
testified that Armitage's discharge was merely the imple-
mentation of an earlier explicit decision to terminate him
after the busy season.
3. Discharge of Brian Hemphill, Michael King,
Mark Ottestad, and Michael Peterson
Mark Ottestad at' relevant times was head waiter at
Respondent 11 King was the assistant head waiter and
Peterson and Hemphill were waiters. All four were dis-
charged on March 26.
Ottestad, King, and Peterson were listed as members
of the union organizing committee on the Union's Febru-
ary 8 letter to Respondent. Hemphill was so listed on the
February 10, 1983 letter to Respondent. There is no
doubt that these individuals were regarded as fully satis-
factory employees up until the commencement of the
union organizing campaign. From that time forward
however, agents of Respondent, including Yost,
Schwartz, and Callie, testified to a deterioration in, the
quality and nature of their performance which ultimately
required their termination. 112 In addition to the allegation
11 While there were some arguments at the hearing regarding the su-
pervisory status of Ottestad, the evidence is clear and I find that, at rele-
vant times and in particular after his loss of scheduling powers in early
February, Ottestad was not a supervisor as defined in Sec 2(11) of the
Act.
12 Counsel for Respondent Rossi testified that following the union-filed
unfair labor practices in early February , Respondent made a conscious
effort to delay adverse action against employees until after the March 25
election
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of an anti- Semitic attack attributed by Callie to Ottestad
and the physical contact events testified to by Schwartz
and Ottestad, additional allegations of misconduct were
litigated. -
Yost testified that he heard Ottestad and Peterson dis-
cussing the Union's possible fortunes just before-the elec-
tion and overheard the assertion that, irrespective of the
outcome, they would. "get even" with Respondent even
if they had to "salt the food or put glass in the ice."- .
Yost further testified that Hemphill's and Peterson's
lack of attention to their assigned duties and general
sloth substantially delayed the beginning of a banquet on
March 20, 1983, resulting in customer complaints. Hemp-
hill and Peterson each testified that the delay in complet
ing arrangements for the banquet on that day was a
direct result of insufficient preparation by busboys prior
to their arrival at the facility and that, under the circum-
stances, no blame could be attributed to them for their
inability to-do their own work as well as, the additional
work made necessary by the -lack of preparation of
others in.the limited time available.
In addition to the various comments attributed to
agents of Respondent discussed supra, employees such as
Hemphill testified to a period immediately after the
ballot count in which Schwartz, Callie,. and others re-
ferred to Peterson and other waiters as-being "history."
Thus, Ottestad testified that Schwartz told Callie in his
presence, "Well, at least Marco knows that he is history
now," and that Callie at that time asked Ottestad wheth-
er it was "worth it". and that Schwartz suggested that
Ottestad ask his wife if it was' worth it "now that you
have lost your home." i a -
D. -Analysis and Conclusions
1 General comments regarding credibility
resolutions
The instant case is somewhat unusual in that the great
bulk of the conversations and events described at the
hearing, which are presented in part supra, 14 are specifi- -
cally denied or given such a different cast by the oppos-
ing testimony as'to constitute the equivalent of a denial
Further, the numerous witnesses to the events. are all, to-
a greater or lesser degree; aligned in interest with either
the Charging Party or Respondent. - Thus, the bulk of
witnesses provided by the General Counsel are either
discharged or suspended employees with a monetary or
emotional stake in the outcome of the litigation or early .
union adherents who have an independent interest in the
success of the Union's charges. So, too, the-bulk of Re-`
spondent's witnesses were either current supervisors and
agents of Respondent or its counsel or the business asso-'
ciates of principals of Respondent. Each side accused the
13 Earlier Schwartz had filled out a favorable job reference and credit
evaluation for Ottestad in. order that Ottestad could qualify for a home
loan
14 The additional numerous collateral conflicting events and collateral
allegations of bad faith and misconduct need not be individually_ad-
dressed to resolve. the disputes at issue in the complaint and would
unduly burden this decision to detail them in full They do constitute an
important part of the record as a whole, however , and have been careful-
ly considered in making the credibility resolutions and other findings of
fact herein
other of implacable hostility, of having a willingness to
shape the truth to produce, a particular outcome -in the
litigation, and of other allegations of dishonesty. Many of
the factual-disputes at the hearing may not simply be re-
solved by a determination that one witness or other had
a distorted or faded recollection of events nor may the
various versions be harmonized into 'a common consist-
ent scenario. For example, the description of the
Schwartz-Ottestad altercation in late March produced
diametrically opposed versions of which individual initi-
ated the assault -and battery. Further, the corroborating
witnesses, who each asserted that they were witness to
the'even t, each denied that the other witness was even
present. So, too, many of the conversations which were
alleged to have occurred by one or more of the wit-
nesses on a particular side were explicitly denied with
equal vehemence by opposing witnesses.
The resolution of credibility conflicts, based on de-
meanor or otherwise, is not done on a single mass basis
with a resultant discrediting of all witnesses on one side
or another. Rather, such resolution must be based on a
careful analysis of probabilities, demeanor, and the
record as a whole on a situation-by-situation basis where
witnesses are not necessarily discredited in their entirety
but rather testimony describing each given situation is
evaluated - to establish what. actually occurred at each -
given event.- Nevertheless, in light of the polarization of
testimony in this case, the individual analysis of-events
and testimony, because of the strongly opposing scenario
of the two sides, may be wrongly preceived as having
been undertaken on a broader than individual situation-
by-situation basis.
- 2. Credibility resolutions
Substantial testimony was produced at the hearing're-
garding the diatribe occurring at various places at the
restaurant by Callie against Ottestad. Callie did not deny
being outrageous -and abusive 'towards Ottestad on
March' 16 but explained his response as a reaction to an
anti-Semitic attack by Ottestad. Ottestad vehemently
denied having undertaken such an attack. I do not find it
improbable that anyone whose ancestors were victims of
the holocaust might well react as Callie claims in re-_
sponse to an anti-Semitic attack from an employee or
indeed anyone who might stoop to such loathsome con-
duct. The difficulty, in the Callie scenario, however, is
that the numerous witnesses to the altercation between
Callie and Ottestad,, including Ottestad himself, testified
consistently that the theme of the, attack was the'trouble
brought upon Callie by Ottestad and his union activities.
When' the attacks of Callie are so characterized it is clear
that Callie's attack on Ottestad cannot be easily harmo-
nized with Callie's claim of making but a vitriolic de-
fense to anti-Semitic remarks by Ottestad.
The improbability of Callie's defense is further illus-
trated by the conversation Callie had with busboys Buck
and Cross immediately after the final altercation with Ot- -
testad. Buck and Cross testified consistently that Callie
came to them after having publicly attacked Ottestad and
told them that, when the union matter was over, busboys
would be much better off. Indeed, in the testimony of
MAGIC ISLAND, INC.
these -witnesses, Callie expressly promised that - they
would be better off although, when asked, he declined to
so assert in writing. The corroborative testimony of the
witnesses to the Callie-Ottestad conversation as well as
the particularly credible testimony of_ Buck and Cross
convince nie that Callie's assertion that his remarks -were
merely an instinctive adverse response to an anti-Semitic
attack is, but a practiced fiction designed to avoid the
consequences of his actual actions. Thus, I discredit
Callie and credit Ottestad, Cross, Hemphill, King, and
Buck regarding the allegations I further credit Peterson,
as corroborated by King, as to the similar remarks Callie
made on an occasion 2 or 3 days later as noted supra.
Callie's denials concerning this conduct were indirect
and unconvincing. It is also probable that having made
similar comments on March 16 he might follow with ad-
ditional comments of like kind. Most importantly, I make
this finding based on the superior demeanor of the
named individuals when compared to Callie.
Various statements were attributed to Stephen
,Schwartz as testified to by former employees Ottestad,
Mooney, Armitage, Peterson, Scott, and others. It is
clear that Schwartz knew the identities of the union or-
ganizing committee-members early on in the organizing
drive as he identified the campaign as primarily one initi-
ated by the waiters. i 5 Schwartz testified that he had
conversations -with employees regarding the Union but
specifically denied the allegations in the complaint as
well as the conduct attributed to him. i 6 It is also clear
that Schwartz as early as the February 14, 1983 memo-
randum to the busboys, felt that the waiters were greedy
and misrepresenting the- situation' in their efforts to
induce other employees to support the Union. This back-
ground, as well as the comparison of 'the relative de-
meanor of Schwartz and the other,employees who testi-
fied to the early February conduct of Schwartz, causes
me to discredit his denials and find that the remarks at-
tributed to Schwartz as described supra up until Febru-
ary 19, 1983, occurred as testified.
The February 19, 1983 meeting between employees
Cervantes, Young, Myer, King, and Ottestad and Re-
spondent's agents Laight and Schwartz presents a variety
of conflicting events. Ottestad and King attribute to
Schwartz a rather naked attempt to induce employees to
abandon the Union, credit him with an admission that
the earlier suspension of King was motivated by antiun-
ion activities and, finally, quote a threat that Ottestad's
employment was jeopardized as a result of his union ac-
tivities . Laight, with Schwartz' general adoption, testi-
fed that the meeting was a benign hearing -out by Re-
spondent of employee grievances followed by the state-
ment of Schwartz that he could not comment or other-
wise act because of the pendency of the union organizing
campaign . Cervantes, then a waiter but at the time of tes-
timony the assistant manager of Respondent, recalled
few of the specifics save that Schwartz asserted that he
is See for example Schwartz' letter to employees dated February 11,
1983, supra.
16 On the General Counsel' s motion , witnesses were sequestered
during the proceeding Respondent 's counsel, however, elected Schwartz
to remain throughout the hearing to advise him As a consequence,
Schwartz had occasion to hear all of the testimony against him
1033
could only listen and could not act or speak because of
the union letter he had received. Cervantes further, how-
ever, attributed statements of hostility and animus against
Schwartz by King and Ottestad as they left the meeting.
Credibility resolutions are not made by simple numbering
or arithmetic calculation of the number of witnesses testi-
fying on one side or another but, rather, are based on a
consideration of the probabilities and the individual testi-
mony of witnesses given their demeanor. In light of my"
findings supra regarding the earlier February conduct of
Schwartz, it is not improbable that the versions of King
and Ottestad are true and that Laight,- Schwartz, and
Cervantes are merely denying the conduct attributed to
them. So, too, however, even given the conduct in earli-
er February by Schwartz, in light of the fact that the
meeting was initiated by employees during the course of
a union organizing campaign, it is also not improbable
that Schwartz would have taken the position he now as-
serts that he could make no statements to the employees
because of the pendency of the union campaign. I credit
Ottestad and King'and, to the extent their testimony was
inconsistent, discredit Laight, Cervantes, and Schwartz
regarding what was said at the -meeting. I make these
findings based on my evaluation of the relative demeanor
of the witnesses. Consistent with my earlier findings, I
did not find Schwartz' denials persuasive. Rather, they
induced in me a belief that Schwartz was seeking to
avoid responsibility for his conduct by process of denials
and the creation of exculpatory or pretextual events
which might justify his acts and conduct. Laight and
Cervantes, who at the time of their testimony had an in-
terest as management agents in supporting their superior
Schwartz, are likewise discredited on the basis of their
unpersuasive demeanor.
The conflicts regarding the March 25, 1983 altercation
between Schwartz and Ottestad 'must, in -my view, bp
analyzed and resolved on the basis of credibility. For the
same reasons noted immediately above, I 'credit Ottestad
and his corroborative witness King over Schwartz and
his corroborative - witness Scott. Quite simply, Ottestad
and King had an outstanding demeanor and I have cred-
ited their testimony previously when if was in - conflict
with Schwartz. On the grounds previously noted 'I dis-
credit Schwartz' version of events herein. I also discount
the testimony of Michael Scott and find that his testimo-
ny was entirely a fabrication to support the principals of
Respondent with whom he works. Michael Scott was a
singularly unpersuasive witness in my estimation.
King and Ottestad testified to several conversations
with Yost as noted supra. I find Yost's denials simply in-
sufficiently persuasive to overcome the credible testimo-
ny of King and Ottestad regarding the conversations,
even given the burden of proof the General Counsel
bears. Accordingly, based on relative demeanor, I credit
the testimony, of King and Ottestad and discredit Yost to
the extent his testimony was inconsistent.
Peterson testified that he overheard a conversation be-
tween Susan Wixted. and Toss Popoulis: Wixted and Po-
poulis- did not testify. -Thus Peterson's testimony is un-
challenged. Finding Peterson to be a credible witness
with a sound demeanor, I credit his testimony.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Conclusions regarding allegations of independent
8(a)(1) violation
a. Steven Schwartz
The Board in its recently issued decision Rossmore
House, 269 NLRB 1196 (1984), has, established a clear
standard.for evaluation of statements by employer agents
to open and active union supporters which are alleged to
violate Section 8(a)(1) of the Act. The Board requires
that the circumstances surrounding each alleged violation
of the Act must -be considered. Thus, consideration of all
the circumstances including the occurrence of other un-.
lawful conduct is necessary to determine if the state-
ments reasonably tend to restrain, coerce, or interfere
with rights guaranteed by the Act. In the instant case the
statements of-Schwartz to employees in early February
were most frequently made to employees_ whose names
had appeared on the Union's letter to Respondent identi-
fying committee organizing members. These employees,
who knew or should have known they were thus known
to Respondent as active union supporters, fall into the
category discussed in Rossmore House. t'
In the credited testimony noted supra, Schwartz asked-
various employees if they had gone to a union meeting,
signed an authorization card, or supported the Union. In -
each case Schwartz connected. his interrogations with
clear threats, i.e., that waiters should assist Schwartz in
stopping the union activities of others "before there was
trouble," that employees who engage in union activity
would be "down to the minimum wage real quick" or
that waiters would have - their wages reduced or would
be fired. The interrogations coupled with the - threats
noted, especially in view of the overall antiunion and
threatening context of the interrogations, make it clear
that Schwartz' conduct was-by any reasonable standard
sure to restrain and coerce employees in the exercise of
their Section 7 rights. i 8 For this reason I find the threats
noted violated Section 8(a)(1) of the Act In this context
of an illegal antiunion campaign, I further find that
Schwartz' remarks to employees that he "knew every-
thing that was going on in the Club and that we should
stop that nonsense and leave everything to him" further
constituted creation of the impression among employees
that management was engaging in- the surveillance of
their union activities. I also find consistent with the
credibility resolutions made supra, that Schwartz at the
February 13 meal served by Peterson, threatened waiters
with discharge,' cuts in pay, and other reprisals if they
supported the Union. i s
17 This is not true in every case For example, I have credited testimo-
ny that Schwartz asked busboy Robert Price what he thought about the
Union and how he was going to vote . There is no evidence that Price
was an active union supporter ' or that Schwartz believed him to be,
therefore the constraints of Rossmore House on previous decisional law
are not applicable -
18 In this context Schwartz ' memo of February 14 is also violative as a
threat to change the tip distribution system for waiters.
19 I do not believe the General Counsel intended to allege the jocular
toasts to Samuel Gompers and others as a violation of the Act nor would
I find such conduct violative when involving known union leaders The
jocularity of such toasts , however , does not insulate the concomitant
threats from violating the Act as found supra
Having credited employees' version of the February
19, 1983 meeting, I find that Schwartz threatened erii-
ployees with disciplinary action, cuts in pay, loss of job
security if they supported the Union, but offered to re-
solve the employees' pay grievances contingent upon the
employees abandoning their support for the Union. I fur-
ther find that he informed employees that King's suspen-
sion was part of Respondent's response to the union or-
ganizing campaign All of these actions and statements
constitute independent violations of Section 8(a)(1) of the
Act and are part and parcel of an antiunion course of
conduct. -
Consistent with my credibility findings supra, I find
that Schwartz engaged in an assault and battery against
Ottestad on March 25, 1983, because of Ottestad's union
activities, thereby violating Section 8(a)(1) of the Act.
b. Michael Callie
Consistent with the credibility resolutions made supra,
I find that Callie engaged in threats against employees,
promised employees -improved benefits in order to dis-
courage their support of the Union, threatened the em-
ployees with decreased wages if the Union won the elec-
tion, and engaged in the above conduct as part of a con-
certed course of conduct of antiunion action designed to
threaten and coerce employees in the exercise of their
Section 7 rights.20 I therefore find each action as noted
violated Section 8(a)(1) of the Act. I do not find-that on
March 25, 1983, Callie violated the Act by ordering
extra security during the Board.election. The "security"
involved was a unit employee of Respondent and there is
insufficient objective evidence that the presence of this
individual was designed or had the actual effect of
threatening or coercing other employees in the exercise
of their Section 7 rights. Accordingly, I shall dismiss this
allegation.
c. Wayne Yost
Consistent with my credibility resolution supra, I find
that Wayne Yost told employees that Schwartz would
not bargain in good faith with the Union and that, be-
cause of employee union activities, they were. going to
make less money and be blackballed in the area. I further
find that Yost told various union supporting employees
they had "chosen the wrong road" and that they would
as a result enjoy bad working conditions and would be
fired the day after the'election. I find these statements, as
part of Respondent's-course of antiunion activity, collec-
tively and severally violate Section 8(a)(1) of the Act.
d. Toss Popoulis -
Consistent with my credibilty finding supra, I find that
Popoulis asked Wixted if she was "voting for the strike."
Wixted's response that she was not going to say anything
about her vote indicates that the question was intended
and taken to address the intentions of Wixted regarding
the union election. Wixted was not identified on the
record as a known union supporter. Accordingly, the in-
20 In this context Callie 's March 22 memo to employees also illegally'
promises to remedy grievances once the Union is rejected by employees
MAGIC ISLAND, INC.
terrogation regarding her vote, coupled with the implica-
tion that if she voted for the Union, she was voting for
an inevitable labor stoppage, in' the context of manage-
ment's consistent campaign of antiunion statements and
threats, violates Section 8(a)(1) of the Act.
4. Conclusions regarding allegations of 8(a)(3) and
(1) violations-
a. The suspension of Alison Myer and the discharge of
Mark Armitage
The General- Counsel's theory of violations. regarding -
the suspension of Alison Myer and the discharge of
Mark Armitage are sufficiently similiar that the two alle-
gations may be considered together. Briefly, the General
Counsel's theory is that the adverse factors asserted by
Respondent as the rationale for the adverse actions
against Myer and Armitage, while concededly true, were
but pretext advanced by Respondent to conceal its true .
motive for the actions which were in fact a retaliatory
response to the fact that the two employees were part of.
the Union's organizing committee. 21 - - -
Myer had violated company rules twice in early .1983
and had by February 6, received a second written repri-
mand dated February 4, 1983: Her misconduct and the
written reprimands each occurred before she engaged in
or was suspected of engaging in union activities. Accord-
ingly, the' reprimands must be regarded as proper. and -
not evidence -of ' misconduct by the Employer. Her -sus-
pension, however, was issued based on Respondent's
learning of her union activities.
Respondent asserts that the 2-week suspension issued
to Myer on'the evening of February 10 was the conse-
quence of a reevaluation of her January misconduct and,
in particular, the issuance of a second defense and second
reprimand within that month. The General Counsel
argues that after the issuance of the second reprimand -
management determined no further action would be
taken against Myer and, only on learning of her union
activities by means .of the Union's letter, was she sum-
moned on her day off to Respondent's facility and sus-
pended. In support of this theory, the General Counsel
offered the testimony of Mark Ottestad who -recalled two
conversations .with Wayne Yost.. In the first, Yost indi-
cated that he was considering terminating Myer `for her
misconduct, but in the second conversation later the
same day,-Yost informed Ottestad that he had decided to
reprimand Alison and not to terminate her. Ottestad's
testimony, which I credit over the unpersuasive denials
of Yost, described events ' which occurred well before
Feburary 10• when Yost summoned Alison to the facility
and suspended her for her earlier misconduct. -
The record is clear, and the General Counsel concedes
that Mark Armitage had been at cross-purposes with Re-
spondent Executive Chef Rudy Jiminez for some time
and that Respondent had, as early as late 1982, consid-
ered terminating Armitage. Indeed, Yost testified, supra;
to a meeting -with management, which I credit, in which
21 Armitage- was identified in the Union's February 8, 1983 letter to -
Respondent as a member of the Union 's organizing committee Myer was
so identified in the February 10, 1983 letter to the Employer
1035
it was -determined in 1982, that Armitage would be em-
ployed through the holiday season but that Armitage
would - be `reviewed in the first week of January, at
which time Respondent would make a decision as to
whether or not to terminate Armitage. Respondent
argues this process of review of Armitage's work ulti-
mately resulted in his termination, particularly on the
events which - Respondent believed represented an at-
tempt by Armitage to steal beer from the facility. , -
The General Counsel `argues, first, that even in Yost's
testimony no specific decision, had been taken to dis-
charge Armitage in January or anytime before Armi-
tage's union activities were discussed and, thus, at least
through inaction Respondent intended to continue Armi-
tage's services. Secondly, and most importantly, the
General Counsel argues that the,Heineken beer incident
and the various reasons given to Armitage by Respond-
ent for his termination were but post- facto attempts -to -
cloak a decision -to I terminate him because of his union
activities. The General Counsel's primary- support for
this theory was the testimony of John Harrington, the as-
sistant chef and statutory supervisor of Respondent -
during the period. Harrington testified, in effect, that
Schwartz during this peri od told him ^ that Armitage was
involved with the Union and that he wanted Harrington
to set up Armitage on a pretext to justify his discharge.
Harrington testified that he demurred on the invitation
and suggested Chef Jiminez be used to fire, Armitage.
Harrington further testified to conversations with Ji-
minez which support the theory that management was
reaching for any excuse to justify terminating Armitage-
when the real reason was his union activities. Schwartz
strongly denied the admissions attributed to. him by John
Harrington. Resolution of credibility between these con-
flicting witnesses is critical to a resolution of the General
Counsel's discharge theory concerning Armitage. This is
so because if Harrington be • credited it is clear that
Schwartz was.engaged in a campaign to discharge Armi-
tage and to conceal the true reasons for the discharge by
coordinating with other management agents of Respond-
ent to create false reasons for his discharge. Such' a find-
ing would also carry the General Counsel's- case as to
Myer, for, her suspension occurred, in effect, at the same,
time in the organizing campaign.
I have carefully considered the testimony of Harring- •
ton, the clarity of his memory of events, and his demean-
or during testimony. I was very impressed with all as-
pects of his testimony and, on the basis of his outstanding
demeanor, credit him entirely over the contrary testimo-
ny of Schwartz. Again, I find Schwartz' denials were un=
dertaken in an effort to avoid both his own and Re-
spondent's responsibility for both the discharge of Armi-
tage and the fact that Respondent undertook to conceal
its true antiunion motives as to Armitage. -
Based on this credibility resolution and on consider-
ation of the record as a whole, -I further fmd that Re-
spondent's high management agents were embarked on a
campaign to discharge or suspend'union supporters and
to cloak those actions by the manufacture of fabricated
reasons . Thus, I also find- Respondent's rationale for the
suspension of Myer is a fiction to' hide its improper
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motive . I find , therefore , that Respondent suspended
Alison Myer and discharged Mark Armitage because
they were identified on union letters as being union orga-
nizing committee members and not for the reasons Re-
spondent asserted. I further find that each action violated
Section 8(a)(3) of the Act. - -
b. Discharges of Brian Hemphill, Michael King,
Michael Ottestad, and Michael Peterson
There is no question that Hemphill , King , Ottestad,
and Peterson were satisfactory employees at least until
commencement of the Union' s organizing campaign.
Each of the four is identified as a union organizing com-
mittee member on the Union 's early February letters to
Respondent. The - issue concerning the discharges is
whether or not, as agents of Respondent testified, the _
four suffered a marked deterioration in the quality of
their work during the period and , consequently , merited
discharge immediately following the election . Respond-
ent's - agents testified to various misconduct by these- . em-
ployees , as related supra , which, I , find 'if it occurred
would justify their termination . The General Counsel
however attacks the asserted misconduct of the four as
being yet another example of pretext and in some cases
fabrication of false reasons designed to cloak the true an-
tiunion motive of Respondent for the discharges.
Much of the attributed misconduct is disputed by' wit-
nesses and requires resolution of the testimonial conflicts.
Thus , for example , Callie's assertions of-an anti-Semitic
attack by Ottestad , plus Schwartz ' assertion in the assault
and battery by Ottestad , would in either case justify an
immediate termination . These- allegations were strongly
denied . In previous credibility resolutions however, I
have determined that the misconduct asserted by Re-
spondent did not in fact occur and was, rather, as the
General Counsel has alleged , a fabrication and pretext
advanced to cloak Respondent 's illegal conduct. xamin-
ing the allegations of misconduct concerning the four by
Respondent 's agents Yost , Schwartz , and Callie as con-
trasted by the testimony of the four regarding their -serv-
ice during the period , I credit the employees over Re-
spondent 's agents that the misconduct did not in fact
occur . Thus, for example , I discredit the assertions of
Yost that Hemphill and Peterson , through their own neg-
-ligence and lack of attention , delayed a banquet on
March 20, 1983, and I rather credit the contrary testimo-
ny of Hemphill and Peterson that the delays in. service
were attributable to the lack of busboy preparation prior
to their arrival at the facility as scheduled . Likewise, I
find the "glass in the ice" comments were never made. .
In addressing the allegations of violations of Section
8(a)(1) of the Act supra , I have credited various employ-
ees who testified that management agents on various oc-
casions made it clear that employees who engaged in
union activities would be terminated the day following
the election . I regard that evidence as well as the over-
whelming evidence of a concerted plan on the part of
management agents to eliminate the leaders of the union
organizing campaign , primarily waiters , and to conceal
Respondent 's true reason for doing so by the device of
fabricating other reasons for their termination , to conclu-
sively . establish that the four individuals here were dis-
charged not for the reasons asserted by Respondent but
rather for . their union activities . Accordingly, I find the
discharge of each was in violation of Section 8(a)(3) of
the Act.
5. Summary
Sustaining the General Counsel's complaint , with the
minor exceptions noted , I have concluded, primarily
based on the demeanor of conflicting witnesses, . that
from the commencement of the union organizing cam-
paign in early February 1983, Respondent engaged in a
widespread pervasive campaign of threats and intimida-
tion against employees generally and that this illegal
campaign took two forms. First, primarily against the
waiters and others identified as union -organizing commit-
tee-member employees, Respondent , in the initial period
of the organizing campaign and thereafter following the
election date , discharged or suspended employees based
on fabricated reasons or previously condoned conduct.
Second , Respondent promised various employees, pri-
marily busboys, that their grievances would be resolved
and their benefits increased once the union campaign was
abandoned . Thus management embarked on an ultimately
successful campaign to eliminate the initial supporters of
the Union , to demonstrate the futility of union represen-
tation , and to combine threats and promises of benefits-to
induce remaining employees to abandon any possible
support for the Union. In making these findings I- have
considered the testimony of former employees appearing
on behalf of the General Counsel to be honest and pos-
sessing a sound demeanor and have found that the re-
marks they attributed to agents of Respondent occurred.
On the contrary, rejecting the denials of the agents of
Respondent, I have found generally that Respondent's
agents had an ongoing plan and practice of falsifying rea-
sons for Respondent 's actions' taken which conduct con-
tinued at the hearing.
V. THE OBJECTIONS
The Board in its order of November 16, 1983 , ordered
Petitioner 's Objections 1-8, 10, and 11 be processed pur-
suant to the Regional Director 's order and ' notice of
hearing . The Regional Director's order and notice of
hearing ruled that Petitioner 's Objections 1, 3-8, and 11
involved conduct similar to that raised by the consolidat-
ed amended complaint and that they should be resolved-
in a hearing in conjunction with those allegations. The
Regional Director further ruled that Objections 2 and 10
raised substantial issues requiring a hearing and directed
that those allegations also be heard with the consolidated -
amended complaint.
Without additional specificity , Respondent's Objec-
tions 1-8 all deal with the unfair labor practice allega-
tions discussed supra which occurred during the period
of time between the filing of the representation petition
on February 15 and the holding of the election on March -
25. The widespread course of illegal conduct by Re-
spondent and its agents during that period , as found
supra, is clearly sufficient to justify sustaining the objec-
tions and setting aside-the election . Further , inasmuch as
these allegations have been found violative of the Act
MAGIC ISLAND, INC
they are, for that reason, also objectionable conduct.
Dal-Tex Optical Co., 137 NLRB 1782 (1962). Such wide-
.spread threats, interrogations, and promises of benefits,
and the February discharge of Armitage as well as the
suspension of Myer -as found supra, made it impossible
for the employees to freely exercise their franchise and
therefore prevented a free election from occurring on
March 25, 1983. Accordingly I sustain Petitioner's Ob-
jections 1-8. Those objections having been found to re-
quire a new election it is unnecessary to address Objec-
tions 2 and 10. Accordingly, I shall not make findings or
recommendations with respect to them.
. I have found that certain of the Petitioner's, objections
to the March 15, 1983 election were meritorious. Ac-
cordingly, I shall recommend that the election be set
aside. In light of my findings, infra, that a new election
has been precluded by Respondent's unfair labor prac-
tices, I will also recommend that a bargaining order issue
in lieu of a new election. Should that finding be reversed
by reviewing authority, I make the following, alterna-
tive, recommendation assuming that a new election is to
be directed. In that event and based upon the egregious
conduct of the Employer herein, I recommend that, on
the request of the Union, the Regional Director include
in any notice of election to be issued in this matter the
following paragraph pursuant to the Board's decision in
Lufkin Rule Co., 147 NLRB 341 (1964):
NOTICE TO ALL VOTERS: -
The election conducted on March 25, 1983, was set
aside because the National Labor Relations Board
found that Magic Island, Inc. interfered with its em-
ployees' exercise of free and reasoned choice.
Therefore, a new election will be held in accord-
-ance with the terms of this notice of election. All
eligible voters should understand that the National
Labor Relations Act, as amended, gives them the
right to cast their ballots as they-see fit, and pro-
tects them in the exercise of this right, free-from in-
terference by any of the parties.
VI. THE REMEDY
A. Remedy for Specific Violations Found -
Having found that Respondent engaged in certain
unfair labor practices , I - shall recommend that it cease
and desist therefrom and- take certain affirmative action
to effectuate the purposes of the Act including the post-
ing of remedial notices in English and , should the Re-
gional Director determine that the circumstances at the
time of the posting warrant , other languages.22 -
Having found that Respondent improperly terminated
the employment of Mark Armitage, Brian Hemphill, Mi-
chael King, Mark Ottestad, and Michael Peterson in vio-
lation of Section 8(a)(3) and (1) of the Act , I shall order
Respondent - to offer , each employee immediate and full
reinstatement to hisformer position of employment or,
should said position no longer exist , to a substantially
equivalent position, without prejudice to any seniority or
other rights and privileges to which each may have been
22 Laborers Local 383 (Arizona AGC), 266 NLRB 934 (1983)
1037
entitled, discharging, if necessary, any replacement hired
after the date of the employee's discharge. I shall order
Respondent to make each discharged employee whole,
including employee Alison Myer for the period of her il-
legal suspension commencing February 11, 1983, for any
loss of earning he or she may have suffered by reason of
Respondent's discrimination against him or her by pay-
ment to him or her of a sum equal to that which normal-
ly would have been earned from the date of discharge or
suspension to the date reinstatement was offered, or the
date the suspension ended , including tips, less net earn-
ings during the period. Backpay shall be calculated in the
manner described in F. W. Woolworth Co., 90 NLRB 289
(1950), together with interest calculated in accordance
with the policy of the Board set forth in Florida Steel
Corp.,-231 NLRB 651 (1977); see also Isis Plumbing Co,
138 NLRB 716 (1962). I shall further order that Re-
spondent expunge from its records any reference to the
illegal suspension and discharges. Sterling Sugars, 261
NLRB 472 (1982).
Inasmuch as the violations found herein involve seri-
ous misconduct involving a significant number of em-
ployees, I find that the nature and extent of Respondent's
unfair labor practices go to the heart of the Act. Accord-
ingly, I shall order Respondent to cease and desist from
violating the Act in any other manner. Hickmott Foods,
242 NLRB 1357 (1979).
B. The Bargaining Order Request
The General Counsel argues that the unfair labor prac-
tices committed by Respondent are so egregious as to re-
quire a bargaining order. H. states on brief:
It is submitted that the conduct of Respondent here
in eliminating majority support for the Union is so
persuasive and egregious that it effectively pre-
cludes employees from exercising the freedom of
choice in any rerun election. The Board and the
Courts have consistently and long held, on a lesser
showing of misconduct than the instant case, the ap-
propriateness of the Board's authority to issue a bar- -
gaining order . NLRB v. Gissel Packing Co., 395 U.S.
575 (1969). Permanent Label Corporation, 248 NLRB
118 (1980). This is true even in the absence of a
valid demand . Beasley Energy, Inc. d/b/a Peaker
Run Coal Company, - 228 NLRB 93, 94 (1977);
Ludwig Fish & Produce, Inc., .220 NLRB 1086
(1975); Stumpf Motor Company, Inc., 208 NLRB
431, fn. 23 (1975). -
The General Counsel and the Union seek what has
come to be known as a "Gissel Category Two" bargain-
ing order, as was described by the Court in Gissel, supra
395 U.S. at 614-615:
The only effect of our holding here is to approve
the Board's use of the bargaining order in less ex-
traordinary' cases marked by less pervasive practices
which nonetheless still have the tendency to under-
mine majority strength and impede the election
processes. The Board's authority to issue such an
order on a lesser showing of employer misconduct
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is appropriate, we should reemphasize, where there
is also a showing that at one point the union had a
majority; in such a 'case, of course, effectuating as-
certainable employees' free choice. becomes as im-
portant a goal as deterring employer misbehavior.
In fashioning a remedy in the exercise of its discre-
tion, then, the Board can properly take into consid-
eration the extensiveness of an employer's unfair
practices in terms of their past ' effect on election
conditions and the likelihood of their recurrence in
the future. If the Board finds that the. possibility of
erasing the effects of past practices and of ensuring
a fair election (or a fair rerun) by the use of tradi-
tional remedies, though present, is - slight and that
employee sentiment once expressed through cards
would, on balance, be better protected by a bargain-
ing order, then such an order should issue.
It is appropriate therefore to consider first the issue of
the Union's majority -and-, second, the likelihood of a fair
rerun election. - -
1. The majority issue
The General Counsel argues that the Union possessed
a numerical majority in an-appropriate bargaining unit on
February 15, 1983. There was no dispute regarding the
appropriateness of the bargaining unit described supra.
The Board in adopting the Regional Director's Report
on Challenged Ballots and Objections determined that
parking lot attendants were not in the unit but that the
doorman and the dining room hosts were within the unit.
The unit is therefore clearly defined with reference to
Respondent's employees. Respondent's payroll journal '
for February 15, 1983, was received into evidence with-
out objection. The journal contains the names of 76 indi-
viduals' working in February- and their job titles. The
General Counsel, consistent with his complaint and, as
previously sustained supra, excludes the employees listed
on the management page of the roster: Jiminez, Lucas,
Popoulis, and Yost. The General Counsel further seeks
to exclude Cynthia Bright, who the Regional Director's
report establishes ceased her employment on January 14,
1983. The General Counsel also seeks to exclude the nine
individuals listed as valets consistent with the Regional
Director's` report sustaining challenges to the parking lot
-employees. The-Regional Director's report is conclusive
as to these employees in the absence of other evidence in
-the matter. The General Counsel further seeks to exclude
John Harrington, the only salaried cook on the payroll
journal as a supervisor. Inasmuch as the complaint al-
leged, and the record reflects, that Harrington exercised
responsible direction of employees and had the power to
reprimand and terminate employees as well as to effec-
tively recommend their hire and fire, I find he was a su-
pervisor, within the meaning of Section 2(11). of the Act.
Thus from the journal- list of 76 the General Counsel
argues , and based on the above , I agree . that 15 individ-
uals should be excluded. I find therefore that on Febru-
ary 15, 1983, there were 62 individuals in the appropriate
collective-bargaining unit, i.e., the names on Respond-
ent's journal minus the individuals here specifically ex-
cluded with the further addition of Armitage who was
not on the journal- list. -
The General Counsel introduced into evidence 34 un-
ambiguous authorization cards23"either authenticated (1)
by the signer or by individuals who witnessed the sign-
ing or (2) individuals who received the cards from the
signers . While counsel for -Respondent attacks these
cards as, being insufficiently identified, the Board has
long sustained the techniques of authenticating signatures
on authorization cards used herein. Anchorage- Times Pub-
lishing Co., 237 NLRB 544, 559 (1978), enfd. 637 F.2d
1359 (9th Cir. 1981), cert. -denied 454 U.S. 835 (1981),
and cases -cited therein. A 35th card was identified by
employee Buck, who-testified that -he signed one card,
which card was apparently lost and authorized another
employee to sign an authorization card for him. This
latter card' was received into evidence. The Board has
specifically approved inclusion of such an authorization
card in Juitak Bros & - Co.; 253 NLRB 1054; 1080 (card
of -Felix Campos) (1981). Indeed the- lost card in these
circumstances would have -been - valid. J. -P.- Stevens &
Co., 244 NLRB 407 (1979) (card of James O. Davis);
Dubois Fence & Garden Co., 156 NLRB 1003, 1004
(1966). - -
In summary, I find that the employee complement in
the appropriate ,unit on February 15, 1983, was 62 indi-
viduals. Of the 62 named individuals the -General Coun-
sel introduced into evidence valid authorization cards
signed or authorized' immediately before February 15,
1983, by 35 individuals. Thus 'as ofthaii date the Union
possessed valid authorization cards- from a majority of
employees in the unit.
2. The issue of insufficiency of remedy by
traditional means- -
I have recommended that the Board order Respondent
to reinstate the five illegally discharged waiters, rescind
the suspension of Myer, and post notices promising not
to engage in the conduct found violative of the Act
herein. Given this, or indeed given other remedies which
might be directed short of a bargaining order, is it fur-
ther necessary to issue a bargaining order in this case to
allow the fair expression of employee sentiments regard-
ing the Union, i.e., can a fair rerun election be held? The
issue is significant because authorization cards are. not
necessarily as reliable a means of ascertaining employee
free choice as -an election, if such an election. may be
fairly conducted.
I have carefully considered the unfair labor practices
found in this matter in light of the traditional Board rem-
edies available and I am convinced that the instant case
presents a very strong and clear example of a situation
where only a bargaining order will restore and preserve
employees' statutory rights. I reach this determination
.because I firmly believe the nature and extent of the
unfair labor practices committed herein will not and
cannot be fully remedied by traditional means and that a
rerun election will almost certainly fail to provide free
23 Authorization cards of individuals not in the bargaining unit as de-
scribed supra have not been considered.
MAGIC ISLAND, INC.
employee choice when compared to the choice reflected
by the authorization cards placed in evidence.
In evaluating the unfair labor practices committed by
Respondent certain factors seem especially significant.
First was-the extensive and unusually abusive campaign
of Respondent's highest managers and owners against
union supporting employees. A veritable fusillade of vio-
lent obscenities coupled with threats and other abuse was
directed at the waiters who were openly identified as the
principal organizers for the Union and a significant por-
tion of that abuse was calculatedly undertaken in front of
other employees particularly the younger and perhaps
more impressionable busboys and kitchen help. This con-
duct will unlikely be forgotten and these high officials of
Respondent remain in charge of unit employees' working
conditions and employment security. Despite any notice
posting or associated promises by Respondent not to
engage in such activity again , employees will not likely
forget the previous election campaign. Second, and more
importantly, is the impact of the simple statistical fact
that Respondent, who had by memo informed all em-
ployees that the waiters were trying to organize a union,
had by the day following the election terminated five of
the nine waiters24 and had suspended a sixth. Such an
evisceration of the, job classification identified by Re-
spondent -as the "greedy" group that was behind the
union campaign would likewise not be soon forgotten by
employees irrespective of Board notices with. their writ-
ten assurances on compliance with the law and the rein-
statement of those waiters who accept the offer of rein-
statement required of Respondent as part of a traditional
remedy.
Third, Respondent's conduct herein is sure. to have a
lasting, essentially irremediable, effect on employees be-
cause of the means by which the Employer effected the
violations found herein. Respondent did not just fire or
suspend employees; rather, its agents manufactured and
falsified allegations of wrongdoing and other asserted
pretexts in support of their actions. Respondent sought to
label these employees criminal, dishonest, negligent in
the extreme, and/or greedy and incompetent Thus, em-
ployees must not simply fear discharge or suspension if
they engaged in union activities, they must additionally
fear that they will be falsely accused of serious wrongdo-
ing which false accusations could, even like the "black-
balling" threat found supra, blemish their reputations and
adversely affect their later employment prospects.25
Again, traditional remedies will simply not reach or re-
lieve the chilling effect on employees of such conduct
I reach this conclusion despite the full knowledge that
in bargaining units such as that involved herein there
will be inevitable turnover of employees26 over time. It
24 Respondent 's February 15 journal identifies nine employees as wait-
ers
25 While never raised at the instant hearing, the decision of California
State Administrative Law Judge L D Morrison based on the unemploy-
ment insurance appeals board hearing for King reflects that Respondent
argued the discharge of King was in part based on his attempt to sell co-
caine to Respondent 's vice president King denied these and other allega-
tions Judge Morrison found Respondent had not met its burden of proof
on the matter
26 Respondent at no time during the hearing - attempted to adduce evi-
dence regarding employee turnover at the facility Only on brief were
1039
is also true that the inevitable, seemingly interminable,
delays in litigation,'i.e., obtaining a decision at the trial
level and at subsequent levels of review, will substantial-
ly delay a final order herein. It is possible that this
matter will not be finally concluded until years after the
March 1983 election. The employee complement of early
1983 may be largely replaced by the time the remedy
herein is implemented. May it be fairly said that those
employees employed as of the time the remedy in this
case becomes final who were not involved in the events
herein should be denied an opportunity to express their
wishes in a rerun election the wishes of former employ-
ees expressed through authorization cards in February
1983 be put into effect? On the facts of this case I strong-
ly believe the earlier expression of employee sentiment
should be relied on. As I have noted, the unfair labor
practices found herein are peculiarly liable to linger and
their effects chill free employee expression among both
old and new employees irrespective of any possible
Board remedy short of a bargaining order. The events in
question here will not quickly fade from memory but
will be inevitably repeated among employees. Traditional
.remedies will reduce not eliminate the damage done.
Indeed, the final order in this case will simultaneously
bring the former events back into currency and conten-
tion among old and new employees alike. Authorization
cards, while less satisfactory than an election which may
be conducted under laboratory conditions in testing em-
ployment sentiments, must be used when a free election
cannot or probably cannot be fairly held. Such is the
case herein. No rerun election here is likely to fairly ex-
press employee sentiments.
Not to use the only measure of employee sentiment
would in this case deny the employees any fair expres-
sion of sentiment at all and reward Respondent for its
bad acts Turnover will always exist to a greater or
lesser degree when litigation of cases such as this con-
sume years rather than months. Yet, given all these fac-
tors, the Board and the courts have long held bargaining
orders in Gissel Category Two cases appropriate. The
instant case is a particularly grievous example of employ-
er wrongdoing with the unfair labor practices found
herein of unusually lasting effect. A bargaining order is
thus particularly necessary and appropriate and I so find.
Consistent with the cases cited by the General Counsel,
the Employer' s bargaining obligation will attach as of
February 15, 1983, in light of the absence of a demand
by the Union. See Anchorage Times, supra. .
Upon the foregoing - findings of fact, in the entire
record herein, I make the following
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.
specific numerical assertions made As a consequence these unsupported
factual claims will not be relied on
1040 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Respondent violated Section 8(a)(1) of the Act by
.interfering with, restraining, and coercing employees in
the exercise of the rights guaranteed by Section 7 of the
Act as follows:
(a) Threatening employees with reprisal, discharge,
strikes, physical violence, pay cuts, blackballing with
other employers, and other adverse consequences as a
result of their union activities and the union activities of
others.
(b) Interrogating employees concerning their union ac-
tivities, membership, and sympathies as well as the union
activities, membership, and sympathies of other employ-
ees.
(c) Threatening to engage in bad faith or surface bar-
- gaining with the Union, thereby demonstrating to em-
ployees the futility of union representation.
(d) Offering to resolve employees pay grievances by
increasing wages and benefits contingent upon employees
abandoning the Union.
(e) Telling employees that they had been disciplined as
part of Respondent's antiunion efforts.
(f) Committing a physical assault and battery upon an
employee because of his union activities.
4. Respondent has violated Section 8(a)(3) and (1) of
the Act by engaging in the following conduct: -
(a) Suspending employee Alison' Myer for 2 weeks be-
ginning on or about February 11, 1983.
(b) Discharging employee Mark Armitage on or about
February 11, 1983, and discharging employees Brian
Hemphill,- Michael King, -Mark Ottestad, and Michael
Peterson on or about March 26, 1983.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
6. The following unit of Respondent's employees con-
stitutes an appropriate unit for purposes of collective bar-
gaining within the meaning of Section 9 of the Act.
All dining room, cocktail lounge and kitchen em-
ployees, including waiters, waitresses, cooks, chefs,
buspersons, bartenders, barbacks, dishwashers, host
and hostess employed by Respondent at its facility
located at 3505 Via Oporto„Newport Beach, Cali-
fornia; excluding all other employees, office clerical
employees, parking lot attendants, magicians, guards
and supervisors as defined in the Act.
7. On of about February -15, 1983, a majority of em-
ployees in the unit described above designated and se-
lected the Union as their representative for purposes of
collective •bargaining with Respondent.
8. The unfair labor practices described above are so
pervasive and extensive as to preclude the possibility of
ensuring a fair rerun election.
On these findings of fact. and conclusions of law and
on the entire record, I issue the following recommend-
ed27
27 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
ORDER
The Respondent, Magic Island, Inc., Newport Beach,
California, its officers, agents, successors, and assigns,
shall - -
1. Cease and desist from
(a) Threatening employees with reprisal, discharge,
strikes, physical violence, pay cuts, blackballing with
other employers, and other adverse consequences as a
result-of their union activities and the union activities` of
others. -
(b) Interrogating employees concerning their union ac-
tivities, membership, and sympathies as well as the union
activities, membership, and sympathies of.other employ-
ees. .
(c) Threatening to engage in bad faith or surface bar-
gaining with the Union, thereby demonstrating to, em-
ployees the futility of union representation.
(d) Offering to resolve employees pay grievances by
• increasing wages and benefits contingent upon employees
abandoning the Union.
(e) Telling employees that they had been disciplined as
part of Respondent' s antiunion efforts.
(f) Committing a physical assault and battery upon an
employee because of his union activities.
(g) In any other manner interfering with; restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action-designed to ef-
fectuate the policies of the Act.
(a) Offer Mark Armitage,- Brian Hemphill, Michael
King, Mark Ottestad, and Michael Peterson immediate
and full reinstatement as waiters at Respondent's facility
or, if such jobs no any longer exist, to substantially
equivalent positions, without prejudice to their seniority
or other rights and privileges, • and make each of them
whole with interest in the manner set forth in the section
above entitled "The Remedy" for any loss of earnings
they may have suffered by reason of the unlawful dis-
crimination against them. -
(b) Make employee Alison Myer whole for any loss of
wages, tips and other benefits and privileges with interest
in the manner set forth above in the section entitled
"The Remedy."
- (c) Rescind and remove all references to the above ad-
verse actions as well as all' references to the above em-
ployees' union activities and/or protected concerted ac-
tivities at Respondent's facility from Respondent's per-
sonnel and other records and notify each employee in
writing that this has been done and that these references
will not be used as a basis for -future 'actions against
them. •
(d) 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.
(e) Recognize, effective February 15, 1983, and, on re-
quest, bargain collectively in good faith with Hotel and
Restaurant Employees and - Bartenders Union, Long
Beach & Orange County, Local 681, Hotel and Restau-
MAGIC ISLAND, -INC.
rant Employees and Bartenders International Union,
AFL-CIO as the exclusive representative of all employ-
ees in the "unit set forth below with respect to rates of
pay, wages, hours, and other terms and conditions of em-
^ployment and, if an understanding is reached, embody
such understanding in a signed agreement. The appropri-
ate unit is:
All dining room, cocktail lounge, and kitchen em-
ployees, including waiters, waitresses, cooks, chefs,
buspersons, bartenders, barbacks, dishwashers, host
and hostess, employed by Respondent at its facility
located 3505 Via Oporto, Newport Beach, Califor-
nia; excluding all other employees, office clerical
employees, parking lot attendants, magicians , guards
and supervisors as defined in the Act.
(f) Post at its Newport Beach, California facility copies
of the attached notice marked "Appendix."28 and copies
of the appendix translated into such additional languages
as are deemed appropriate by the Regional Director.
Copies of this notice, and translated notices as appropri-
ate, after being signed by Respondent's authorized repre-
sentative, shall be posted by 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 Respondent to ensure that the notices - are
not altered, defaced, or covered by other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER RECOMMENDED that the Union's Objec-
tions to the election be sustained, and the results of the
election be set aside consistent with the recommenda-
tions contained in the portion of this decision entitled
"The Objections" and, if a new election is ordered, that
the notice to all voters contain the language contained in
the portion of this decision entitled "V. The Objections."
28 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board found that we vio-
lated the National Labor Relations Act and has ordered
us to post this notice and abide by its terms.
Section 7 of the National Labor Relations Act gives you,
as employees, certain rights including the rights:
To engage in self-organization
To form, join, or help a union
1041
- To bargain collective through a representative of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things.
Accordingly we give you these assurances. _
WE WILL NOT threaten employees with disciplinary
action, reduction in tip income, reprisals, discharge,
physical violence, strikes, pay cuts, or other adverse con-
sequences because of their efforts to seek union represen-
tation.
WE WILL NOT interrogate employees regarding their
union membership, union activities or sympathies or the
union membership, activities or sympathies of other em-
ployees.
WE WILL NOT threaten to engage in bad faith or sur-
face bargaining with the Union or otherwise suggest that
union representation of our employees would be a futili-
ty.
WE WILL NOT offer to resolve employees' pay griev-
ances by promising wage increases and other changes in
benefits contingent upon employees abandoning the
Union.
WE WILL NOT physically assault employees because of
their union sympathies.
WE WILL NOT tell employees that other employees
have been disciplined as part of out antiunion efforts.
WE WILL NOT threaten to blackball employees by
making employment at other employers more difficult
because of their union activities in our facility.
WE WILL NOT suspend our employees because of their
union activities.
WE WILL NOT terminate employees because of their
union activities.
WE WILL NOT in any other manner interfere with, re-
strain or coerce employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
WE WILL make former employee Alison Myer whole
with interest for any loss of wages, tips, and other bene-
fits suffered because of our discriminatory suspension of
her for 2 weeks beginning on February 11, 1983.
WE WILL offer employees Mark Armitage, Brian
Hemphill, Michael King, Mark Ottestad, and Michael
Peterson immediate and full reinstatement to waiter posi-
tions at our facility or, if such positions no longer exist,
to substantially equivalent positions, without prejudice to .
their seniority or other rights and privileges, and WE
WILL make each whole with interest for any loss of earn-
ings each may have suffered because of our discrimina-
tion against them.
WE WILL remove from our files any reference to the
suspension of Alison Myer and the discharges of Mark
Armitage, Brian Hemphill, Michael King, Mark Ottestad,
and Michael Peterson, and WE WILL notify each of them
that this has been done and that evidence of these illegal
acts will be be used as a basis for future actions against
them.
WE WILL recognize, effective February 15, 1983, and,
upon request, bargain collectively with Hotel and Res-
taurant Employees and Bartenders Union, Long Beach &
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Orange County Local 681 , Hotel and Restaurant Em-
ployees and Bartenders International Union , AFL-CIO
as the exclusive bargaining representative of our employ-
ees in the appropriate collective -bargaining unit set forth
below, and will embody any understanding reached in a
signed agreement . The appropriate collective -bargaining
unit is:
All dining room, cocktail lounge, and kitchen em-
ployees, including waiters, waitresses, cooks, chefs,
buspersons, bartenders, barbacks, dishwashers, host
and hostess, employed by Magic Island, Inc. at its
facility located at 3505 Via Oporto, Newport
Beach, California; excluding all other employees,
office clerical employees, parking lot attendants,
magicians , guards and supervisors as defined in the
Act.
MAGIC ISLAND, INC.