Maxi City Deli

National Labor Relations Board - Board Decisions

Jan 14, 1987

282 N.L.R.B. 742 (N.L.R.B. 1987)

742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
David's Kosher Deli, Ltd . d/b/a Maxi City Deli and
Hotel Employees and Restaurant Employees
Union, Local 100 of New York, New York and
Vicinity, AFL-CIO. Cases 2-CA-21045, 2-
CA-21045-2, and 2-RC-19971
14 January 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 6 August 1986 Administrative Law Judge
Howard Edelman issued the attached decision. The
Respondent filed exceptions' and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions2 and to adopt the recommended Order
as modified.
The Respondent disputes the finding that Anne
Yeck left on 12 May because of its threat to expose
Tammy Yeck's abortion. The Respondent contends
that Anne's departure was at the instigation of
fellow waitress Joann Stevens who, shortly before
leaving the Respondent's premises with Anne, had
given 2 weeks' notice. The judge stated the follow-
ing:
Deutch threatened to expose the facts of
Tammy Yeck's abortion to everyone. Yeck
began to cry and could not continue to work.
Yeck told Stevens she was leaving and Stevens
who had already given her two weeks notice,
decided to quit with her on the spot.
Regarding her departure after Deutch's threat,
Anne Yeck stated the following:
I hadn't decided to leave until Joann came out
and saw me crying and said she couldn't work
under this pressure and let's get the hell out of
here and I said you're right and we left. As I
was leaving, [Deutch's father] asked me if I
' The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Or. 1951).
We have carefully examined the record and find no basis for reversing
the findings
8 The judge concluded that the Respondent violated Sec 8(a)(1) of the
Act by circulating an antiunion petition among its employees and requir-
mg them to sign it and renounce the Union We note that the record does
not show that the Respondent in fact required any employee to sign the
petition. However, the circulation of the petition by the Respondent's co-
owner and his request for employees ' signatures is sufficient to establish a
violation of Sec. 8(a)(1).
would stay until they could get some help in. I
was in no condition to work after that.
The Respondent urges that the judge ignored
Anne Yeck's testimony about Joann Stevens' role
in Anne Yeck's decision to quit. We find no merit
to the Respondent's claim and uphold the finding
of constructive discharge. The evidence shows that
prior to the above-mentioned discussion between
Stevens and Anne Yeck and their departure from
the Employer's premises on 12 May, the Employer
had threatened Anne Yeck with exposing her
daughter's abortion if Anne did not cease her union
activity. It is this conduct that violated the Act and
serves as the basis for the finding of a constructive
discharge. That Stevens may have made the state-
ment indicated above is of no consequence because
it does not contradict Anne's testimony that
Deutch improperly threatened her because of her
activities on behalf of the Union, and that it was
that threat that caused her anguish and precipitated
both her decision to leave and her subsequent de-
parture.
With respect to the constructive discharge of
Tammy Yeck, we note that the Respondent threat-
ened Anne Yeck, Tammy's mother, with exposing
Tammy's abortion if Anne did not cease her union
activity. Although the threat was made to Anne
Yeck, it was tantamount to a threat to Tammy her-
self for the purpose of coercing her to either stop
her mother's union activism or face public expo-
sure of her abortion. In effect, Tammy Yeck was
being penalized for her mother's union involvement
inasmuch as she was the target of a threat designed
to discourage union activity and to intimidate a
union adherent. This unlawfully motivated threat
had the effect of forcing Tammy to quit her job to
avoid humiliation and embarrassment, a foreseeable
consequence of the threat to Anne Yeck.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, David's Kosher Deli, Ltd. d/b/a Maxi
City Deli, New City, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(e).
"(e) Requesting or requiring its employees to
sign a petition renouncing the Union or any other
labor organization."
2. Substitute the attached notice for that of the
administrative law judge.
282 NLRB No. 107
MAXI CITY DELI 743
APPENDIX.
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE -
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
oftearnings and other benefits resulting from their
discharge, less any net interim earnings, plus inter-
est.
DAVID'S KOSHER DELI, LTD. D/B/A
MAXI CITY DELI
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT interrogate our employees con-
cerning their- membership in or activities on, behalf
of Hotel Employees and Restaurant Employees
Union, Local 100 of New York, New York, and
Vicinity, AFL-CIO or any other labor organiza-
tion.
WE WILL NOT threaten our employees not to
recognize or bargain with the Union, if duly select-
ed by our employees as their collective-bargaining
representative.
WE WILL NOT threaten our employees with a re-
duction of working benefits, including eating and
smoking privileges, if they select the Union or any
other labor organization as their collective-bargain-
ing representative.
WE WILL NOT threaten our employees with a re-
duction of working hours if they- select the Union
or any other organization as their collective-bar-
gaining representative.
WE WILL NOT promise our employees improved
benefits in their working conditions, including med-
ical coverage and increased wages, to coerce them
from selecting the Union or any other labor organi-
zation as their collective-bargaining representative.
WE WILL NOT request or require our employees
to sign a petition to renounce the Union or any
other labor organization.
WE WILL NOT discharge and thereafter refuse to
reinstate our employees because of their member-
ship in or activities on behalf of the Union or any
other labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of their right to self-organization; to
form, join, or assist labor organizations; to bargain
collectively through representatives of their own
choosing; and to engage in other concerted activi-
ties for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from
any or all such activities.
WE WILL offer Anne and Tammy-Yeck immedi-
ate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their -seniority
or any other rights or privileges previously en-
joyed and WE WILL make them whole for any loss
Leonard Grumback Esq., for the General Counsel.
Jack Schloss, Esq. (Krause & Schloss), for the Respondent.
Harold Ickes, Esq. (Suozzi, English & Klein, P. C.), for the
Union.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This
case was tried before me on November 18 through 21,
1985, at New York, New York.
On May 13 and 16, 1985, the Hotel Employees and
Restaurant Employees Union, Local 100 of New York,
New York and Vicinity, AFL-CIO (the Union), filed
unfair labor practice, charges, in the above-captioned
cases, against David's Kosher Deli, Ltd. d/b/a Maxi
City Deli (Respondent).
On June 27, 1985, an order consolidating cases and a
consolidated complaint issued alleging violations of Sec-
tion 8(a)(1) and (3) of the Act.
On May 7, 1985, the Union filed a representation peti-
tion in the above-captioned cases . On June 28, an elec-
tion was conducted pursuant to a Stipulation for Certifi-
cation Upon Consent Election. On July 5, the Union
filed timely objections to the election. On August 9 these
objections were consolidated for hearing with the unfair
labor practice complaint.
During the course of the hearing the Union moved to
withdraw Objections 1 through 8, 14, and 15 and to
amend objections by deleting employee Joann Stevens.
This motion was granted, Consequently; the objections
parallel the allegations set forth in the complaint.
Briefs were filed by the General Counsel and Re-
spondent. On my consideration of the entire record, the
briefs, and my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
Respondent is a New York corporation engaged in-the
operation of a restaurant in New City, New' York. Based
on a projection of its operations,' Respondent admits it
will annually derive gross revenues in excess of $500,000
and will annually purchase goods and products valued in
excess of $50,000 directly from points outside the, State
of New York.
Respondent admits, and I fmd, that it is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the'Act.
Respondent further admits, and I find, that the Union
is a labor organization within the meaning of Section
2(5) of the Act.
Dennis Deutch and his father Morris purchased Re-
spondent's restaurant and commenced operation in De-
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cember 1984. Prior to that, Dennis Deutch had worked
as a counterman at a nearby restaurant for over 10 years.
Anne Yeck and her daughter Tammy Yeck had worked
at this restaurant with Dennis as waitresses for the same
period of time. New City is a rather small and tightly
knit community where everybody knows each other.
Over the years, the Yecks and the Deutchs became close
friends in both a business and social relationship. Addi-
tionally, as waitresses, over the years, the Yecks built up
a rather large following of customers who frequented the
restaurant where they worked. The employees at this
restaurant were represented by the Union, and Anne
Yeck was their shop steward.
In January 1985, shortly after the Deutchs began oper-
ation of their new restaurant, they hired the Yecks as
waitresses , partly because of their friendship, and partly
because of the large number of customers the Yecks
would bring to Respondent's restaurant. The customers
at both restaurants were primarily local residents. At the
time of the Yecks hire, Respondent's employees were not
represented by'any labor organization, nor was Respond-
ent, as a result, of his purchase of the restaurant, under
any obligation to recognize any labor organization.
Within a short time after the Yecks were hired, Anne
Yeck became disenchanted with their working condi-
tions. At the old restaurant employees received $2.95 an
hour whereas Respondent paid them $2.30 an hour. Mo-
veover, at their prior place of employment employees re-
ceived medical benefits, whereas no medical coverage
was provided by Respondent. As a result of this dispari-
ty in medical benefits and wages, friction developed be-
tween Anne Yeck and the Deutchs as she continued to
push them for medical coverage and/or wage increases
without success.
Sometime around the end of March 1985 Tammy
Yeck, a single woman, became pregnant and decided to
have an abortion. Because of their still close relationship,
she discussed her situation with the Deutchs who were
very sympathetic and solicitous . Tammy Yeck decided
to have an abortion "in early April and because she could
not afford to pay or it, Dennis Deutch loaned her $400
to cover the cost of the operation. Tammy had made it
clear, and the, Deutchs understood, that her abortion was
a very personal and confidential matter.,
The only people who were informed about Tammy
Yeck's abortion, from the end of March through May 12
(Tammy Yeck's last day of work for Respondent), were
Tammy's immediate family, including Tammy's mother,
Anne, a close personal family friend not employed by
Respondent, and Victoria Vislocky, a waitress employed
by Respondent with whom Tammy had become friendly.
Tammy Yeck denied she informed Vislocky about her
abortion. Vislocky testified that Tammy had informed
her. I credit Vislocky. I was generally impressed with
Vislocky's demeanor. Her testimony concerning her con-
versation with Tammy, in which Tammy told her she
had an abortion, was very detailed and not the type of
testimony that is easily fabricated, notwithstanding cer-
tain minor errors of fact. Moreover, Vislocky was about
the same age as Tammy and had a similar lifestyle. It is
understandable that Tammy might discuss this problem
with Vislocky.
Sometime around mid-April, Anne Yeck had a conver-
sation with Dennis Deutch, in which she told him that if
something were not done about providing her with medi-
cal coverage she would quit in 2 weeks. The health in-
surance was not provided but Anne Yeck did not quit.
Dennis Deutch admitted that he did not believe she was
giving actual notice of an intention to quit. Indeed, about
this same period of time, Anne Yeck took steps to obtain
medical coverage; she contacted the Union.
Between mid-April and May 1, Anne Yeck met with a
union representative and began soliciting employees on
behalf of the Union and distributing union literature at
the restaurant. Dennis Deutch admitted he was informed
about this activity by various employees and was uspset
and angry over their activities. He admitted he was just
getting started in his business and it would be a heavy
financial burden to have to bargain with the Union. He
was angry that Anne Yeck, a close friend, who he had
brought in to work for him, was responsible for attempt-
ing to organize his restaurant on behalf of the Union.
On May 1 about 15 employees met at Anne Yeck's
home. Representatives from the Union were present and
about 13 employees signed union cards. At this time Re-
spondent employed about 34 employees on various shifts.
On May 9, the Union filed the instant representation pe-
tition, which was received by Respondent on May 10. ,
Anne Yeck credibly testified that on the evening of
April 30, Dennis Deutch called her at home. He told her
he knew about the Union and the union meeting sched-
uled to take place at her home. He asked her to stop
with this union "bullshit" and promised to improve bene-
fits and give the employees more money. He, told her
there would never be a union at his restaurant.
Deutch testified he called Anne Yeck in connection
with a nonwork-related accident' suffered by Tammy in
which her back was injured. Anne then complained that
if Tammy were in the Union she would have medical
coverage. Deutch told her that the union coverage was
not good. At this point, he asked her what was going on
with the Union. Yeck asked him what he meant. Deutch
replied he knew about her union activity and then asked
if she was having a union meeting at her home on May
1. Yeck said yes.
I credit Anne Yeck's testimony. I was generally im-
pressed with her demeanor. She answered questions put
to her on both cross- and direct examination in a detailed
and forthright manner. Moreover, her testimony, relating
to this and other conversations, was in part corroborated
by other General Counsel witnesses, and at other times
by admissions by Dennis Deutch.
I do not find Dennis Deutch to be a credible witness. I
was unimpressed with his demeanor. He was often eva-
sive in his response to questions put to him on cross-ex-
amination . He was obviously angry and hostile toward
Anne Yeck, which was clearly evident to me by the tone
of his voice when he testified concerning conversations
with her. He was often inconsistent in connection with
his feelings concerning the Union's organization. He fre-
quently testified that he had no animosity toward the
Yecks or to recognizing and bargaining with the Union
should they be selected by the majority of his employees.
MAXI CITY DELI
Yet, at other times , his testimony , not to mention the
corroborative testimony of General Counsel witnesses,
establishes an intense animosity toward the Union . In this
respect, and merely as a few examples , he admitted that
with his business just getting started , it would be a heavy
financial burden on him to bargain with the Union and
he was very angry at Anne Yeck because of her organi-
zational activities on behalf of the Union . He admitted,
as described above , and below , unlawfully interrogating
Anne Yeck concerning her union activities. He also ad-
mitted, as described below, circulating an antiunion peti-
tion among his employees . Additionally, as set forth
below, his testimony relating to the events immediately
preceding Anne Yeck's leaving Respondent 's facility on
May 12 are patently unbelievable.
Deutch admitted that during his April 30 conversation
with Yeck he asked her what was going on with the
Union, and if she was having a union meeting at her
home. I find such questions to constitute unlawful inter-
rogation in violation of Section 8(a)(1). The facts sur-
rounding this interrogation are distinguishable from those
in Rossmore, House, 269 NLRB 1176 (1984), in that the
interrogation in the instant case was accompanied by
both threats and promises.
I also find Deutch's statement that there would never
be a union at his restaurant to be a threat that Respond-
ent would not recognize and bargain with the Union in
violation of Section 8(a)(1) of the Act.
I further find Deutch's promise to improve medical
benefits and to give the employees more money violative
of Section 8(a)(1) of the Act.
Yeck credibly testified on May 2, during work, that
Dennis Deutch passed by and told her she had to "get
this Union shit out of her head,- that this wasn 't a Union
house and it was never going to be a Union house."
Deutch did not specifically deny this conversation.
Such statement is an obvious threat that Respondent
will not recognize and bargain with the Union . I find it
violative of Section 8(a)(1).
On May 3 Dennis Deutch called Tammy Yeck at
home. She had suffered a nonwork-related injury to her
back . Dennis asked her how she felt . Tammy Yeck then
credibly testified Dennis stated , "I want to talk to you
about the Union shit. I can 't afford this Union, I'm
strapped, I've got everything I have in the business."
Tammy replied she needed medical benefits provided by
the Union, and related the cost of her medical expenses
for her back injury , which were not covered by medical
insurance. Deutch then told her if the Union got in he
would make it tough on the employees. He stated that
there would be no smoking and that the employees
would be eating tuna fish sandwiches and hot dogs. (At
this time it is undisputed the employees were permitted
to smoke and could eat anything on the menu but veal
and steak.) Then Dennis stated, "I 'm not for this Union,
there's never been a union in this place and there ain't
going to be a union now, as long as I'm the owner."
Dennis then asked her to help him and promised he
would make it worth her while.
Deuth testified he called Tammy to see how she was
feeling . During their conversation she stated if she were
still in the Union she would have had medical coverage.
745
Deutch told her that the Union 's coverage was so poor
that he had to obtain supplemental coverage . He testified
that he then told her working conditions were better at
his restaurant than at the restaurant where they all for-
merly worked . In this regard he pointed out that at the
old restaurant the employees were required to eat hot
dogs ' and tuna fish sandwiches , while at his restaurant the
employees could eat almost anything.
I credit Tammy Yeck 's testimony . I was generally im-
pressed " with her overall demeanor . She was generally
responsive and forthright in answering questions on both
cross- and direct examination and I believe her to be a
truthful witness notwithstanding that, "contrary to her
testimony discussed above and below , I believe she con-
fided in ,Victoria Vislocky about the details of her abor-
tion.
As set forth above, I have concluded Dennis Deutch is
simply not a credible witness.
Therefore, I conclude that Deutch 's threat to make it
tough on employees , eliminating smoking privileges and
restricting eating privileges constitutes an unlawful threat
to make working conditions more onerous and to reduce
job benefits in violation of Section 8(a)(1). I further find
Deutch's statement about never having a union in his res-
taurant to be another threat not to recognize and bargain
with the Union in violation of Section 8(a)(1).
I also find Deutch 's statement that if Tammy Yeck
helped him (keep out the Union), he would make it
worth her while to be an unlawful promise of benefits in
violation of Section 8(a)(1).
Sometime during the first week in May , Joann Stevens
credibly testified that while she was eating her lunch at
Respondent 's restaurant, Dennis Deutch passed by and
stated that if the Union came in the employees would be
eating tuna fish sandwiches and hot dogs.
Deutch did not specifically deny this conversation.
Moreover, Stevens' testimony is corroborated in part by
that of Tammy Yeck.
I find this statement to be an unlawful threat to reduce
job benefits in violation of Section 8(a)(1).
Michael Lieber, a busboy employed by Respondent,
credibly testified that sometime during the first weekin
May, Dennis Deutch told him that if he joined the Union
he would cut his work hours from 4 days a week to 1
day a week . Lieber had attended the May 1 union meet-
ing at Anne Yeck's home and was friendly with the
Yecks. Deutch was aware of this. Deutch does not deny
this conversation . I find this statement to be an unlawful
threat to reduce working hours in violation of Section
8(a)(1).
It is admitted by Dennis Deutch that during the first
week in May , Morris Deutch circulated an antiunion pe-
tition among the employees, which he asked them to
sign. The petition stated specifically that the undersigned
employees did not want the Union to represent them.
Deutch obtained 15 to 20 signatures in this manner. I
conclude Respondent violated Section 8 (a)(1) by such
conduct. RAI Research Corp ., 257 NLRB 918 (1981).
Tammy Yeck credibly testified that on May 11 while
working at the restaurant , Dennis' Deutch stated to her,
"It won't have any reflection on you , if I throw your
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mother's ass out of here." Deutch does not deny this
statement.
May 12 was Mother's Day, a holiday where restau-
rants are exceptionally busy and a waitress can expect to
make a lot of money in gratuities.
Anne Yeck credibly testified that on May 12 she and
fellow waitresses, Joann Stevens, who had worked with
Yeck for the past year and with whom Yeck was friend-
ly, arrived at the restaurant to work. Because it was
Mother's Day, they had expectations of making good
money. On her arrival she saw Dennis Deutch and greet-
ed him in a perfunctory manner. Deutch angrily com-
plained to her about her greeting and left. A few minutes
later he returned, still angry and told her to "get this
union bullshit out of my head." The restaurant was not a
union house and would never be one.
Thereafter, Dennis Deutch and Joann Stevens had a
discussion about Stevens' shift schedules, which was not
resolved. As a result of this, Stevens gave Deutch 2
weeks' notice.
Deutch, who had left Stevens, was fairly angry. Anne
Yeck testified that he then walked up to her and asked
her why she did not quit. Yeck replied that Deutch
would have to fire her. At this point, Deutch threatened
to expose the facts of Tammy Yeck's abortion to every-
one. Yeck began to cry and could not continue to work.
Yeck told Stevens she was leaving, and Stevens, who
had already given 2 weeks' notice, decided to quit with
Yeck.
After leaving the restaurant, Yeck, who customarily
rode to work with Stevens, went home with Stevens.
When they got home Yeck told her daughter, Tammy,
of her conversations with Deutch that day and of
Deutch's threat to expose her abortion. Tammy Yeck
had been scheduled to work a later shift but, in view of
Deutch's threat, decided to quit.
Deutch testified that when Anne Yeck walked into the
restaurant on May 12 he said good morning and she
mumbled some greeting in return. In a few minutes
Deutch confronted her and asked what was "bugging"
her. She said nothing was wrong. Deutch admits he then
told her, "I'm tired of everything. You're disrupting my
whole staff lately. It's affecting my business. I'm tired of
it, alright? You have to have the Union? I'm tired of
hearing about your bitching and your complaining that
you don't want to do this and you don't want to do that.
And, listening to the stuff about the Union, listening to
the stuff about the health insurance." Yeck then replied,
"If you don't like the way it is fire me, I'm not going to
quit."
Deutch then left Yeck and met with Stevens. He
admits, as a result of their failure to agree on schedules
that Stevens would be satisfied with, she gave him 2
weeks' notice.
Deutch then incredibly testified that a few minutes
after his conversation with Stevens, Yeck, out of the
blue, told him she and Stevens were quitting and they
left. Deutch specifically denied ever threatening to
expose Tammy Yeck's abortion or that Yeck was crying
as she left.
For the reasons set forth above, I credit Anne Yeck's
testimony and discredit the testimony of Deutch, except
that testimony relating to his conversation with Yeck, in
which he rails at Yeck's activity on behalf of the Union
and admits that Yeck told him she had no intention of
quitting. This credible testimony is totally inconsistent
with his subsequent incredible testimony that just a few
minutes later she announced for no apparent reason that
she was quitting. It is also inconsistent with Yeck's char-
acter. Yeck was no quitter. She had worked at her prior
restaurant, a union house, over 10 years where she was a
shop steward. She had come over to Deutch's restaurant
and, when she became dissatisfied with her working con-
ditions, she did what came naturally to her, she began to
organize the house. This activity is simply inconsistent
with Deutch's testimony that Yeck simply quit and that
he did not threaten to expose her daughter's abortion as
a means of forcing her to quit.
Respondent contends that the Yecks could not have
quit because of an alleged threat on May 12 to expose
Tammy Yeck's abortion because her abortion at this time
was common knowledge in the restaurant. Respondent's
evidence does not support this contention. While I cred-
ited Respondent's witness Victoria Vislocky's testimony
that Tammy Yeck confided in her, I concluded that, be-
cause of their relatively close relationship and similar
lifestyle, such a confidence would not be unusual. More-
over, Vislocky testified that Neck indicated to her that
their conversation was confidential and that she did not
tell anyone about it.
Angela Russo, a waitress employed by Respondent,
testified that she first learned about they abortion at least
a month after the Yecks quit: Dennis Deutch testified to
the same effect. Bonnie Taylor, a waitress employed by
Respondent and called by Respondent- as a witness, testi-
fied initially that the abortion was common knowledge
while the Yecks were still employed. However, on cross-
examination she admitted she was uncertain, and that she
might have acquired her knowledge of the abortion well
after the Yecks left.
Accordingly, I conclude that at the time the Yecks left
Respondent's restaurant, the Yecks intended that Tammy
Yeck's abortion be kept confidential and that only those
intimates described above were aware of the abortion. It
certainly was not common knowledge.
The legal issue remaining is whether the Yecks were
constructively discharged.
The Board has held that two elements must be estab-
lished to prove a constructive discharge.
a. The burden imposed on the employee must
cause, and be intended to cause, a change in work-
ing conditions so difficult or unpleasant that the em-
ployee is forced to resign.
b. It must be established that the burden so im-
posed was imposed because of the employee's union
activities.
See Algreco Sportswear Co., 271 NLRB 499, 500 (1984);
Keller Mfg. Co., 237 NLRB 712, 722-723 (1978).
The Board has held that when an employer engages in
conduct designed to inflict mental or emotional stress on
an employee with the intention that such employee will
be forced to quit and such conduct is motivated by the
MAXI CITY DELI
employee's union activity, a constructive discharge 'is
found when the employee succumbs to this pressure.
Thus, in Great Southern Construction, 266 NLRB 364,
374-375 (1983), the Board found constructive discharges
when the employer created an intolerable employment
situation for two union adherents with the intent of forc-
ing them to quit. By subjecting them to close surveil-
lance and threatening to file conspiracy charges against
them, the Employer imposed conditions that it reason-
ably should have foreseen would induce the employees
to quit.
In Fluter Bros., 227 NLRB 921, 936-937 (1977), the
Board found a constructive discharge where the employ-
er badgered a high-strung emotional employee because
of her union activities until she resigned. The employer
played "on her fragile nervous system in the hope of
provoking her to do precisely what she did-offer her
resignation" and thereby achieved her "emotional surren-
der."
In the instant case, it is obvious that Dennis Deutch
wanted to get rid of Anne 'Peck. He felt he could not
afford to, and did not want to deal with the Union and
he was aware that Anne Yeck was solely responsible for
the union organization in his restaurant. His statement to
Tammy 'Yeck on May 11 about throwing Anne Yeck's
"ass out [ofl here" and diatribe on May 12 directed to
her union activities moments before he threatened to
expose her daughter's abortion establish his desire to be
rid of Anne. Yeck because of her union activities. The
timing of these statements also 'establishes that the threat
to reveal Tammy Yeck's abortion was the sole reason for
the threat. Dennis Deutch wanted to be rid of Anne
Yeck and her union activities. She would not quit. She
had told him so moments before. I conclude that, in des-
peration, Deutch made his threat, hoping that it would
force her to quit, notwithstanding her stated intention to
stick it out and continue her union activity. He was suc-
cessful . She quit. Moreover, when Tammy Yeck was in-
formed of Deutch's threat she also quit. Both Anne and
Tammy Yeck credibly testified that they quit because of
the humiliation and emotional impact they felt would
follow when the threat was carried out,
That such threat is capable of producing deep humilia-
tion and a strong ' emotional impact is evident by the
nature of the threatened disclosure. The subject of abor-
tion is one of the most, if not the most, volatile and sensi-
tive single issue splitting our society today. Opponents of
abortion regard those who perform abortions and those
'who have abortions as "child killers" or "murderers."
Clearly the threat of revealing that Tammy Yeck had an
abortion would be expected to have the most profound
emotional impact on both Anne and Tammy Yeck.
Accordingly, I conclude that Anne and Tammy Yeck
were constructively discharged by Respondent in viola-
tion of Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times material, 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.
747
`3. 'By interrogating its employees concerning their
membership in^ or activities on behalf of the Union, Re-
spondent has-violated Section 8(a)(1) of the Act.
4. By threatening its employees that Respondent
would not recognize or bargain with the Union if duly
selected by a majority of the employees, Respondent vio-
lated Section 8(a)(1) of the Act.
5. By threatening its employees with a reduction of
work benefits, including eating and smoking privileges, if
they selected the Union as their collective-bargaining re-
presentive, Respondent violated Section 8(a)(1) of the
Act.
6. By threatening its employees. with a reduction of
working hours if they selected the Union as their collec-
tive-bargaining representative, Respondent violated Sec-
tion 8(a)(1) of the Act.
7. By circulating an antiunion petition among its em-
ployees and requiring them - to sign it and renounce the
Union, Respondent violated Section 8(a)(I) of the Act.
8. By promising employees improvements in their
working conditions, including medical coverage ' and in-
creased wages, if they ceased their membership in or ac-
tivities on behalf of the Union, Respondent violated Sec-
tion 8(a)(1) of the Act.
9. By constructively discharging Anne and Tammy
Yeck because of their membership in or activities on
behalf of the Union, Respondent has violated Section
8(a)(1) and (3) of the Act.
THE REMEDY
Having found that Respondent has engaged in various
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative actions
designed to effectuate the policies of the Act.
I found that Respondent discriminatorily, constructive-
ly discharged Anne and Tammy Yeck. I shall, therefore,
recommend that Respondent offer to them full and im-
mediate reinstatement to their former jobs, or if those
jobs are no longer available, to substantially equivalent
positions of employment, without prejudice to their se-
niority or other rights and privileges previously enjoyed.
I shall also recommend that Respondent make whole
Anne and Tammy Yeck for any loss of earnings suffered
by reason of the discrimination against them.
Backpay for the above employees shall be computed in
accordance with the formula approved in F. W. Wool-
worth Co., 90 NLRB 289 (1950), plus' interest as set forth
in Florida Steel Corp., 231 NLRB 651 (1977).
I shall also recommend that Respondent remove from
its records any reference to their unlawful discharges,
and to provide written notice of such removal to those
employees, and to inform them that Respondent's unlaw-
ful conduct will not be used as a basis for further person-
nel actions concerning them. Sterling Sugars, 261 NLRB
472 (1982).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
' If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings, conclusions, and recommended
Continued
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent, David's Kosher Deli, Ltd. d/b/a
Maxi City Deli, New City, New York, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating its employees concerning their mem-
bership in or activities on behalf of Hotel Employees and
Restaurant Employees Union, Local 100 of New York,
New York and Vicinity, AFL-CIO or any other labor
organization.
(b) Threatening its employees not to recognize or bar-
gain with the Union if duly selected by its employees as
their collective-bargaining representative.
(c) Threatening its employees with a reduction of
working benefits, including eating and smoking privi-
leges, if they select the Union or any other labor organi-
zation as their collective-bargaining representative.
(d) Threatening its employees with a reduction of
working hours, if they select the Union or any other
labor organization as their collective-bargaining repre-
sentative.
(e) Threatening to require its employees to sign a peti-
tion renouncing the Union or any other labor organiza-
tion.
(f) Promising its employees improved benefits in their
working conditions, including medical coverage and in-
creased wages, to coerce them from selecting the Union
or any other labor organization as their collective-bar-
gaining representative.
(g) Discharging and thereafter refusing to reinstate its
employees because of their membership in or activities
on behalf of the Union or any other labor organization.
(h) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through rep-
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.
resentatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to re-
frain from any or all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to Anne and Tammy Yeck full and immedi-
ate reinstatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions of em-
ployment, without prejudice to their seniority or to other
rights and privileges previously enjoyed.
(b) 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.
(c) Post at its place of business in New City, New
York, copies of the attached notice marked "Appen-
dix."2 Copies of the notice, on forms provided by the
Regional Director for Region 2, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the election held
on June 28 be set aside and that a new election be con-
ducted.
2 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."