Maxwell's Plum

National Labor Relations Board - Board Decisions

Jul 7, 1972

198 N.L.R.B. 14 (N.L.R.B. 1972)

14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MPC Restaurant Corp . and Hardwicke's Plum Ltd.,
d/b/a Maxwell's Plum and Dining Room Employ-
ees, Local 1 affiliated with Hotel & Restaurant
Employees and Bartenders International Union,
AFL-CIO and Chefs , Cooks, Pastry Cooks and
Assistants Union, Local 89, Hotel and Restaurant
Employees and Bartenders International Union of
America, AFL-CIO. Cases 2-CA-12166-1,
2-CA-12166-2, and 2-CA- 12207
July 7, 1972
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On November 30, 1971, Trial Examiner Maurice S.
Bush issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a
supporting brief, and Local 89 filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions' and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, conclusions and to adopt his
recommended Order as modified herein.2
The Trial Examiner, as more fully set forth in his
Decision, found that Marcel LeBloas, a cook, was
discharged in violation of Section 8(a)(3) several
weeks after the inception of Local 89's organizing
campaign and 4 days after signing a union authonza-
tion card. Although there was no direct evidence that
the Respondent was aware of this minimal union
activity, the Trial Examiner inferred that the Respon-
dent checked LeBloas' background, knew that his
previous employers recognized a union, and conclud-
ed that LeBloas was a member of Local 89. The Trial
Examiner further inferred, based on this "'knowl-
edge" of LeBloas' previous union affiliation, that the
Respondent suspected that LeBloas was among the
first to sign a union authorization card. Couplingthe
Respondent's knowledge and suspicions with the
inconsistency between the reasons given LeBloas for
his discharge and that advanced at the hearing, the
Trial Examiner found that LeBloas had been
discriminatorily discharged. We conclude that the
Respondent's exception to this finding has merit.
I This task, complicated by sheer volume, has been rendered more
difficult by Respondent's frequent failure to abide by Sec 102.46 of the
Board 's Rules and Regulations , Series 8, as amended
2 The Respondent has excepted to certain credibility findings made by
the Trial Examiner It is the Board's established policy not to overrule a
Although LeBloas' discharge in the context of this
case and the shifting reasons given therefor are
highly suspicious, we are unable to find proof that
Respondent was aware of his union activities. The
link between fact and ultimate inference is simply
too tenuous.
Similarly, contrary to the Trial Examiner, we
conclude that there is not a preponderance of
evidence to support the finding that Respondent's
granting of life insurance benefits to its kitchen
employees following Local 89's request for recogni-
tion violated Section 8(a)(1). The record indicates
such benefits were under consideration well before
the Respondent was aware of Local 89's organizing
campaign and a sufficient nexus has not been
established between the campaign, timing, and effect
of the benefit to establish unlawful impact or motive.
The Respondent has also excepted to the Trial
Examiner's validation of Osvaldo Avelino's authon-
zation card. Avelino testified, in Spanish, that Jose
Ferreira "told" him to sign and "made" him sign an
authorization card as well as testifying that Ferreira
asked him to sign a card and that he signed because
he liked the idea of the union . Careful review of
Avelino's total testimony convinces us, as it did the
Trial Examiner, that Avelino was not implying that
he signed a union authorization card under duress
but that he merely intended to say that he was
requested or asked to sign the card.
In finding that the Respondent violated the Act the
Trial Examiner relied to some extent on the fact that
Robert Tanzi, an acknowledged supervisor who
played a major role here, was not called by the
Respondent to testify. The Respondent has excepted
to this reliance on the grounds that Tanzi had
permanently left the country and that a request to
take his deposition had been denied by the Regional
Director. We are satisfied that such reliance was not
critical and do not rely on Tanzi's absence to the
extent we otherwise adopt the Trial Examiner's
Decision. It is, therefore, unnecessary for us to
consider whether the Respondent's apparent failure
(no record citation or allegation to the contrary
appears in Respondent's exceptions or brief) to
explain Tanzi's absence to the Trial Examiner would
warrant an unfavorable inference.
Finally, we note that the Trial Examiner erroneous-
ly found that Collins' credited testimony established
that Fareri, the assistant general manager, had
admitted that Miranda and Wolf were discharged
"because of the union." Review of the transcript
Trial Examiner's resolutions with respect to credibility unless the clear
proponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A. 3) We have carefully examined the record and
find no basis for reversing his findings
198 NLRB No. 13
MAXWELL'S PLUM
reveals no such testimony by Collins. However, both
Miranda and Wolf testified to separate admissions
by Fareri to that effect, Wolf in those words. Since
the Trial Examiner specifically credited their testimo-
ny on this point earlier in his Decision, this error had
no prejudicial effect.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified below
and hereby orders that the Respondent MPC
Restaurant Corp. and Hardwicke's Plum Ltd., d/b/a
Maxwell's Plum, New York, New York, its officers,
agents, successors, and assigns shall take the action
set forth in the Trial Examiner's recommended Order
as modified.
1. Delete "Marcel LeBloas" from paragraph 2(a)
of the Trial Examiner's recommended Order.
2. Substitute the attached notice for the Trial
Examiner's notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the U.S. Government
WE WILL, upon request, bargain with the Chefs,
Cooks, Pastry Cooks and Assistants Union, Local
89, Hotel and Restaurant Employees and Barten-
ders International Union of America, AFL-CIO,
as the exclusive representative of all the employ-
ees in the bargaining unit described below with
respect to rates of pay, wages, hours of employ-
ment, and other conditions of employment, and if
an understanding is reached, embody such an
understanding in a signed agreement. The bar-
gaining unit is:
All kitchen employees employed at Max-
well's Plum, exclusive of waiters, bartenders,
stewards, guards, watchmen, professional
employees, and all supervisors as defined in
Section 2(11) of the Act.
WE WILL offer the dischargees listed below full
reinstatement, and pay them for the earnings they
lost as a result of their unlawful discharges on the
dates set opposite their names, plus 6-percent
interest:
Dischargees Discharge Dates
Carlos Miranda Sept . 23, 1970
Richard Esposito Sept. 23, 1970
Michael Wolf Sept. 25, 1970
Jose Ferreira Oct. 6, 1970
15
WE WILL NOT discharge or discriminate against
any employee for supporting Local 89 (the
kitchen employees' local) or Local I (the dining
room local), or any other union.
WE WILL NOT coercively question you about
union support or union activities.
WE WILL NOT threaten you with discharge for
union activities.
WE WILL NOT make promises and grants of
wage increases and benefits unilaterally or with-
out notification to or consultation with Local 89
and Local 1, for the purpose of discouraging
membership in said Local 89 and 1, or support
thereof in a manner constituting a violation of
Section 8(a)(1) of the Act.
WE WILL NOT unlawfully interfere with our
employees' union activities.
MPC RESTAURANT
CORP. AND HARDWICKE'S
PLUM LTD., D/B/A
MAXWELL'S PLUM
(Employers)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
viduals, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance wth the Selective Service Act
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 36th Floor, Federal Building, 26
Federal Plaza, New York, New York 10007, Tele-
phone 212-264-0300.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH, Trial Examiner: Respondents' Max-
well's Plum' is a plush Manhattan restaurant which the
Respondents state in their brief "affords its clientele the
I "Maxwell's Plum" is the "nom de plume" of Respondent MPC
Restaurant Corp, and Respondent Hardwicke's Plum, Ltd., doing business
under the trade name and style of Maxwell's Plum , as a joint venture.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
very best service in New York City" by reason "partially
... of its atmosphere and decor,2 and . . . the teamwork
of all its employees."
The Plum employs approximately 100 kitchen and dining
room employees.
In the fall of 1970, independent drives were started by
Charging Party Local 89 to organize the Plum's kitchen
employees and by Charging Party Local 1, to organize its
dining room employees.3
The complaints herein allege various unfair labor
practices by the Respondents in their operation of the
Plum. The complaint in Cases 2-CA-12166-1 and -2 was
issued on December 4, 1970, pursuant to two charges filed
by Local I on September 29, 1970, copies of which were
duly served on the Respondents. The complaint in Case
2-CA-12207 was issued on January 5, 1971, pursuant to a
charge filed by Local 89 on November 16, 1970, a copy of
which was duly served on the Respondents. The two
complaints were consolidated for trial by an order dated
January 7, 1971.
The Respondents in their answers to the two separate
complaints deny any unfair labor practices.
The consolidated proceeding was tried before me over a
period of 20 trial days between March 9 and April 21,
1971, at New York, New York. The transcript of the record
consists of 3,356 pages. Briefs were received on June 14,
1971, from counsel for General Counsel, for Local 89,4 and
for the Respondents. These have been carefully reviewed
and considered.
Upon the entire record and from his observation of the
witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENTS-JURISDICTION
The two Respondents herein, both of which are
organized under the laws of New York, have at all times
here material constituted a joint venture for the purpose of
controlling and operating a restaurant under the aforemen-
tioned trade name and style of Maxwell's Plum, located at
First Avenue and 64th Street, New York, New York, which
also constitutes the joint venture's place of business.
During the past year, which is representative of its
operations, Respondents, in the course and conduct of
their business, received gross revenue in excess of $500,000
from the retail sale of food and beverages, and purchased
and caused to be transported and delivered to their
restaurant beverages and foods and other goods and
materials valued in excess of $50,000 which were transport-
ed and delivered to such restaurant in interstate commerce
directly from States other than the State of New York. It is
admitted that the Respondents are and have at all times
here material been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATIONS
The two Unions named in the caption are labor
organizations within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Issues
In the fall of 1970, as heretofore indicated, Local 89 and
Local I started independent campaigns to organize the
Plum's kitchen and dining room employees, respectively.
Only one of these two unions, Local 89, sought
recognition as the authorized exclusive bargaining agent of
the employees it sought to organize; namely, the Plum's
kitchen employees. The complaint in Case 2-CA-12207
alleges that Local 89 sought recognition on the basis of the
possession of signed authorization cards from a majority of
the employees in the appropriate unit and that the
Respondents' refusal to bargain with Local 89 is a violation
of Section 8(a)(5) of the National Labor Relations Act.
Respondents have utilized perhaps as much as one-half of
the total trial time in the case to the defense of that issue.
The joint venture's chief defense is an attack on the
appropriateness of a unit of its employees confined to its
kitchen employees. It takes the position that the only
appropriate unit in its case is an overall unit consisting of
both its kitchen and dining room employees, notwithstand-
ing the holding in Toffenetti Restaurant Company, Inc., 133
NLRB 640, involving another Manhattan restaurant, in
which the Board held that a separate unit of the
employer's I kitchen I employees to be an appropriateI unit.
To overcome the precedent of the Toffenetti case, Respon-
dents attempted to show that current collective-bargaining
agreements in the restaurant industry in the Manhattan
area call for overall appropriate units covering both
kitchen and dining room employees. Findings on this
attempt will be made below. In addition, the joint venture
challenges the very existence of a request from Local 89 for
recognition, the possession by Local 89 of a majority of
authorization cards from employees in the alleged appro-
priate unit, and the validity of enough of these cards to
destroy the alleged majority.
Unlike Local 89, Local 1-i.e., the Dining Room
Employees Union-has made no request to the Respon-
dents for recognition as the bargaining agent for the dining
room employees it sought to organize. There is thus no
8(a)(5) issue with respect to Local 1.
Events subsequent to the initiation of the organizational
drives of the two Unions at the Plum embrace alleged
discriminatory discharges of both dining room and kitchen
employees, alleged threats of discharge or other reprisals to
dining room employees for supporting Local 1, and alleged
promises and grants of benefits to dining room employees
to induce them to refrain from supporting Local 1. They
8 The lavish decor of the Plum is reflected in photographs in evidence as financial ability of the Unions to purchase the more than 3,000 page
Resp . Exhs. 36 to 38. transcript of the hearing herein , the Trial Examiner invited briefs from them
3 The full names of the Charging Parties are shown in the caption above sans references to the transcript , based upon their trial notes Local 89's
4 Inasmuch as counsel for the Unions expressed grave doubts about the brief is based on trial notes
MAXWELL'S PLUM
also embrace alleged unlawful interrogations, alleged
promises of wage increases and the granting thereof, and
alleged promises of various insurance benefits to kitchen
employees to induce them to refrain from supporting Local
89.
The issues as framed by the pleadings are: (1) whether all
of Respondents' kitchen employees at its Maxwell's Plum
restaurant, exclusive of waiters, bartenders, stewards,
guards, watchmen, professional employees and all supervi-
sors as defined in Section 2(11) of the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act; (2) whether
on or about October 21, 1970, a majority of Respondents'
kitchen employees as described above, designated and
selected Local 89 as their representative for purposes of
collective bargaining with the Respondents; (3) whether
Local 89 made a request to the Respondents on or about
October 21, 1970, for recognition as the exclusive bargain-
ing representative of Respondents' above-described kitch-
en employees; (4) whether the Respondents on or about
October 21, 1970, refused and still refuses to recognize
Local 89 as the bargaining representative of Respondents'
kitchen employees; (5) whether the Respondents at various
dates in September and October 1970 discriminatorily
discharged various of its kitchen and dining room
employees; and (6) whether Respondents engaged in
various acts of interference, restraint, and coercion (a) by
on or about October 22, 1970, offering and promising
various kitchen employees wage increases to induce them
not to support Local 89, (b) by granting at the pay periods
ending October 28 and November 4, 1970, wage increases
to various kitchen employees to induce them to refrain
from assisting Local 89, (c) by during the month of
November 1970 promising and granting to its kitchen
employees various types of insurance, such as health, group
life, accidental, death, and dismemberment insurance to
induce them not to support Local 89, (d) by in November
1970 offering and promising its kitchen employees paid
holidays and double pay for holiday work to induce them
not to support Local 89,5 (e) by unlawfully interrogating its
kitchen employees on or about October 1, 1970, concern-
ing their support of Local 89, (f) by threatening its dining
room employees on or about September 24, 1970, and
other unknown dates with discharge or other reprisals for
supporting Local 1, (g) by offering and promising dining
room employees on or about September 24, 1970, and
various other unknown dates, life insurance policies, health
benefits, and other benefits and improvements in their
working conditions to induce them to refrain from
supporting Local 1, and (h) by on or about November 1970
granting to their dining room employees life insurance
benefits to induce them from giving assistance to Local 1.6
5 This is alleged in par 16 of the complaint in Case 2-CA-12207. As
General Counsel offered no proof in support of the allegation, it will be
recommended for dismissal for failure of proof
6 On some of the issues noted above as framed by the pleadings, there
has been partial failure of proof by General Counsel In all such instances,
the portions of the allegations on which no proof was adduced will be
recommended for dismissal for failure of proof
B. Preliminary Issue as to Appropriate Unit
17
From the large amount of trial time the Respondents
expended and sought to expend on the issue of the
appropriate unit herein and from the priority and space
they give it in their brief, it is at once obvious that the
Respondents deem the most crucial issue in the case to be
whether its kitchen employees constitute , as alleged in the
complaint, an appropriate unit.
The reason for this position is apparent . As "Point I" in
their brief, Respondents assert that, "The only appropriate
unit for purposes of collective bargaining is an overall unit
of [all of] Respondent 's [sic]7 employees ." In other words,
the Respondents contend that the appropriate unit should
consist of a unit composed of all of its employees, made up
of both its kitchen and dining room employees, with the usual
exceptions . Of the two unions here involved as Charging
Parties , only Local 89, the kitchen employees union, has
the apparent strength to demand recognition as the
bargaining agent for the Plum's kitchen employees, based
on the alleged possession of authorization cards from a
majority of the Plum 's kitchen employees . On the record,
Local 1, the dining room or waiters' union , has no such
strength as there is no allegation in the complaint (Cases
2-CA-12166- 1 and -2) that Local 1 represents a majority
of the Plum 's dining room employees , nor does it appear to
the Trial Examiner that the Respondents have any fear
that its dining room employees will be soon organized
because of the vast disparity of earnings between them and
the kitchen employees. The Plum's waiters earn around
$400 per week , mostly in tips with only $1.14 per hour
coming from wages under New York State minimum wage
laws whereas the weekly pay of the Plum's kitchen help,
such as here involved , is approximately $104 based on an
hourly pay on the average of $2.60 .8 The kitchen
employees do not receive any tips.
Thus a favorable decision on Respondents ' position that
the only appropriate unit here is an overall unit of all of the
Plum's employees with the usual exceptions would assure
the Respondents of not having to deal with any unions and
simultaneously render academic the issues of (a) whether
Local 89 made a request for recognition as the bargaining
agent for the Plum's kitchen employees , (b) whether Local
89 had in its possession authorization cards from the
majority of the Plum's kitchen employees to represent
them on the date it requested recognition , and (c) whether
the cards are valid for authorization purposes-all of
which questions the Respondents have placed in issue.
The difficulty with Respondents' position that the
appropriate unit should be an overall unit of all of its
employees is that it turns counter to a decision rendered by
the Board as long ago as 1961 in Toffenetti Restaurant
Company, Inc., supra. In that proceeding, the Board found
the "existence of an area pattern [New York City] for
I As Maxwell 's Plum is owned and operated as anoint venture by the two
corporations named above, the reference to their employees should be
"Respondents ' employees ," rather than "Respondent 's employees" as used
in Respondents' brief.
s This is a rough estimate , but accurate enough to show the wide
disparity in earnings between the Plum's waiters and its kitchen help
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining on the basis of separate kitchen units in restaurant
establishments ...." (Emphasis supplied.)
Local 89 is a chartered local union for kitchen employ-
ees, with delegated jurisdiction over the Boroughs of
Manhattan, the Bronx, and Richmond in New York City.
John Rey, secretary-treasurer of Local 89, has been an
officer and organizer for Local 89 for more than 35 years.
Rey's undisputed testimony9 shows that since the decision
of the Board in the Toffenetti case the area practice in the
Greater New York City area has continued to be for
kitchen employees to be represented separately as a unit in
first class restaurants. His testimony further shows that
similarly it is also the area practice for dining room and bar
employees to be represented separately in first class New
York restaurants. These area practices are in line with
other evidence showing that (kitchen employees) Local 89,
(dining room employees) Local 1, and (bartender employ-
ees) Local 15-all sister locals under Hotel & Restaurant
Employees and Bartenders International Union of Ameri-
ca, AFL-CIO-are organized exclusively along craft lines.
Maxwell's Plum as a first class Manhattan restaurant
would in the absence of very special circumstances be
subject to these area practices.
During the course of the trial herein, the Respondents,
by use of numerous dragnet subpoenas duces tecum,
subpenaed literally hundreds of restaurant union contracts
from the two local unions, here involved as Charging
Parties, from numerous other restaurant locals, and from
the files of the New York State Labor Relations Board in
an effort to prove through them that the area practice in
the Greater New York City area calls for overall units of
all employees in each restaurant establishment, contrary to
the established holding of the Board in the Toffenetti case
and Rey's testimony that the practice is for kitchen and
dining room employees to be organized and represented
separately.
The subpoenas duces tecum served by the Respondents on
the two Charging Parties herein and upon numerous other
restaurant unions required the production of, "All collec-
tive-bargaining agreements currently in effect" between the
subpenaed union and restaurant employers in the city of
New York or in named counties in the State of New York.
(Emphasis supplied.) (Resp. Exh. 23.)
Of the approximately 750 collective-bargaining agree-
ments under subpoena duces tecum Local 89 has in its files,
110 thereof were submitted to Respondents by Local 89.
The uncontested testimony of Secretary-Treasurer Rey of
Local 89 establishes that these 110 contracts are represent-
ative of Local 89's 750 collective-bargaining contracts. The
record further establishes that these 110 contracts show
units consisting exclusively of kitchen employees, except
that in approximately five contracts thereof the unit
included some employees whose status as kitchen employ-
ees might be questionable, such as "runners" who earn tips
and dining room porters who could be classified as dining
room employees. But even in these five instances, the
number of questionable kitchen employees as against the
number of unquestionable kitchen employees is fractional.
For example, the Forum of the Twelve Caesars, a
Manhattan restaurant, employs 33 employees, of which 30
are out-and-out kitchen employees and only 2 are bar
porters who may or may not be classified as kitchen
employees.
The fact that the 110 contracts submitted pursuant to
subpoena duces tecum by Local 89 to Respondents contain
such few instances of kitchen units with fractional numbers
of employees whose status as kitchen employees is
questionable is further proof that the 110 contracts
submitted by Local 89 to Respondents were not culled to
reflect units consisting exclusively of simon-pure kitchen
employees, but are truly representative of the 750 collec-
tive-bargaining contracts Local 89 has in its files and as
such corroborate both the Board's holding in the Toffenetti
case and Secretary-Treasurer Rey's testimony that the area
practice in New York City is for kitchen employees to be
represented separately as a unit in first class restaurants.
The 110 submitted collective-bargaining agreements are
for the most part with first class restaurants.
After Local 89's initial response to Respondents'
subpoenas duces tecum as set forth above, the Trial
Examiner, on April 7, 1971, during the course of the trial,
prevailed upon Local 89 to make available to Respondents
more of its collective-bargaining agreements for inspection
at the local's offices. On that date at Local 89's offices,
Secretary-Treasurer Rey turned over to one of Respon-
dents' counsel for inspection approximately 250 of the
Local 89's collective-bargaining agreements in addition to
the 110 contracts that it had heretofore submitted to the
Respondents. From noon to 5 p.m., Respondents' counsel
examined 147 of the 250 contracts and then left the Local
89's office without staying to examine the remaining 103
collective-bargaining contracts. It is inferred from the fact
that Respondents did not seek to offer any of the 147
examined collective-bargaining agreements into evidence
that they all showed units composed exclusively of kitchen
employees.
Summarizing, the Trial Examiner finds and concludes
that Respondents, pursuant to their subpoena duces tecum
upon Local 89, had the opportunity to examine and did
examine 257 contracts of the approximate 750 collective-
bargaining contracts Local 89 has in its files and that the
record shows that the units described therein consist
virtually entirely of kitchen employees.
The Dining Room Employees Union, Local 1, in
response to Respondents' subpoena duces tecum likewise
calling for all of its current collective-bargaining agree-
ments, submitted 30 out of its total of approximate 700
such agreements as "representative" of all of its agreements
and declined to submit any further agreements under a
motion to quash or limit, the subpoena duces tecum. Mr.
Darby, the principal counsel for Respondents, agreed to
that the 30 submitted contracts "only contained classifica-
tions for non-kitchen employees," but declined to stipulate
that they are representatives of all of Local l's contracts.
The 30 submitted contracts were, for the most part, with
such fine and well-known Manhattan restaurants as Toots
Shor, Le Provencal, Al Cooper's, Sweet's Parisien, Via
Veneto, Dawson's Steak House, Cyrano, the Boathouse,
9 Respondents adduced no testimony to the contrary. contracts, none of the 30 contracts were offered in evidence and if offered
10 Because of this agreement covering the essential point of the 30 would have served no useful purpose.
MAXWELL'S PLUM
Gallaghers, and Frankie & Johnnie's. Although it is a
relatively new restaurant, Respondents' Maxwell Plum is
of the same class or genre . In subrrutting these 30 contracts
as representative, Mr. Pinto, the principal attorney for
Local 1, stated to the Trial Examiner, "I can tell you
without equivocation that Local I has not one contract
which represents any persons or units or any other person
who is not a dining room employee and each and every one
of its separate and distinct contracts will bear this out
... ." Although Mr. Darby declined to accept the 30
contracts as representative, he admitted in effect that he
had no evidence and presented no evidence to the
contrary. He did not call an available officer of Local 1 for
cross-examination on whether or not the 30 submitted
contracts were representative.
In addition to the subpoena duces tecum served on Local
89 and Local 1, the Respondents served virtually identical
subpoenas duces tecum upon some 12 to 13 other restaurant
unions, requiring each of them to likewise produce, "All
collective-bargaining agreements currently in effect" with
owners of restaurants in New York City and in various
counties of the State of New York. (Emphasis supplied.)
The broadside subpoenas duces tecum brought forth
motions by Locals I and 89 to quash, revoke, or in the
alternative to limit the subpenas on numerous grounds.
The motions were granted to the extent the subpoenas duces
tecum required production beyond the 257 collective-
bargaining agreements submitted by Local 89 and the 30
submitted by Local 1, primarily because the Board had
already held in the Toffenetti case, supra, that the area
pattern in New York City was for kitchen employees to be
represented separately for bargaining purposes and be-
cause the collective-bargaining agreements submitted by
Locals 89 and 1 under Respondents' subpoenas duces tecum
confirmed and corroborated the Board's holding in the
Toffenetti case . Similar motions by numerous other
restaurant unions subjected in the same way to Respon-
dents' dragnet subpenas for all of their collective-bargain-
ing agreements were granted for the same reasons.'1
In summary, it is found both under the Board's holding
in the Toffenetti case and by the independent evidence
adduced in the instant proceeding that the area pattern in
Manhattan is for separate bargaining units for kitchen,
11 The Trial Examiner granted the motions to quash or limit the various
subpoenas duces tecum on the following grounds (1) The Board has held in
the Toffenetti case that there is an areawide pattern in New York City for
bargaining on the basis of separate kitchen units in restaurant establish-
ments , (2) the testimony of John Rey, secretary-treasurer of Local 89, shows
that the area pattern for separate kitchen units as found by the Board some
years ago in the Toffenetti case still prevails in the greater metropolitan area
of New York City, (3) the collective-bargaining agreements submitted by
Local 89 and Local 1, pursuant to Respondents' subpenas, confirm and
corroborate the practice of separate units for kitchen and dining room
employees as found by the Board in the Toffenetti case , (4) further
submission of more of such agreements would be merely cumulative, (5)
Respondents are misusing the subpena process for exploratory or discovery
purposes, (6) counsel for Respondents has admitted that he has no proof or
knowledge that Local 89 or Local I represented any restaurant employees
other than kitchen and dining room employees, respectively; (7) the
subpenas served on the various restaurant unions impose an unreasonable
burden and could hamper their operations, (8) Respondents have
introduced no evidence from their own sources showing that Local I and 89
represent employees other than dining room and kitchen employees,
respectively, (9) and the time for a cutoff and to move on to other issues had
19
dining room, and bar room employees in restaurant
establishments.12
Recognizing the possibility of the above finding, the
Respondents seek to avoid its impact, first by the
contention that due to the difference in facts under which
the Toffenetti case reached the Board from that in the
present case the Toffenetti decision is not controlling here.
The Toffenetti case reached the Board on a request for
review of a Regional Director's Decision and Direction of
Election. The Regional Director in his Decision under
footnote 2 stated that Local 89, the same Union here
involved as one of the two Charging Parties, sought a unit
of kitchen employees but the employer wanted to add to
the unit such other employees as laundry workers,
maintenance-repairman, cashiers, etc. The Regional Direc-
tor in the same footnote stated that both Local 89 and the
employer sought "to exclude waiters, waitresses, and bus
boys because all of such employees are currently represent-
ed by another union." (See attachment to Resps. Exh. 25.)
Based on the Regional Director's implicit finding in the
Toffenetti case that neither the petitioning union, Local 89,
nor the employer therein, "sought an overall unit," the
Respondents contend that the present case is different and
distinguishable because the Respondents as owners of
Maxwell's Plum do seek an overall unit. Respondents do
not offer any explanation of why this difference has any
relevant meaning to the issue herein of why the kitchen
employees of Maxwell's Plum do not constitute an
appropriate unit as alleged in the complaint. If anything,
this factual distinction brings added emphasis to the
Board's finding in Toffenelti that the area pattern for New
York City is "for the bargaining of separate kitchen units
in restaurant establishments" inasmuch as it shows that
Toffenetti in accord with area practice recognized the right
of its dining and kitchen employees to be represented
separately by different craft unions.
Another distinction Respondents seek to draw between
its situation and that in the Toffenetti case is that in
Toffenetti "the unit structure" for separate units for kitchen
and dining room employees had been established "by the
consent of the parties" whereas here there has been no
such consent by the Respondents. From this distinction,
the Respondents assert that the employer in Toffenetti
"tacitly conceded the appropriation of the proposed
arrived in view of the full opportunity already given the Respondents to
develop by evidence their theory that the only appropriate unit for
Maxwell's Plum was an overall unit of all of its employees.
Apparently totally unconvinced by these reasons, Respondents in their
brief at In 4 on p. 26 complain . "Respondent requested the Board to grant
permission to appeal the Trial Examiner's ruling revoking its subpoenas
. . Following the conclusion of the trial, the Board issued a telegraphic
communication on April 23, 1971, denying Respondent's request. The
ruling of both the Trial Examiner and the Board are erroneous and
prejudicial and deprive the Respondent of due process."
It is this inability to face intractable fact that prolonged the trial of this
case from an estimated 3- or 4-day trial to a 20-day trial
12 In the Toffenetti case, supra, the Board in a footnote pointed out that
its decision in Toffenetti " is not to be construed as a modification of existing
Board policy as to hotel units" In hotel -motel-restaurant situations for
reasons, that do not have to be set forth here, it has been Board policy to
allow overall employee units . The Respondents' reliance on Westward-Ho
Hotel Co, 437 F 2d 11 10 (C A. 9), for support of its position for an overall
unit of all of Maxwell's Plum er..ployees is misplaced because that case dealt
with a hotel-restaurant situation ; Maxwell 's Plum has no hotel or motel
accommodations-it is strictly a New York City restaurant.
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
departmentalized representation" whereas here the Res-
pondents oppose departmentalization and seek in its place
an overall unit. But here again, if anything, the fact that the
employer in the Toffenetti case recognized that its dining
room and kitchen employees are entitled to separate units
is additional proof of the area practice of separate units for
dining room and kitchen employees.
Respondents finally seek escape from the Board's
holding in the Toffenetti case under the claim that the
"similarity of job functions of Respondent's employees
warrants an overall unit of determination." In support of
this contention, the Respondents adduced evidence show-
ing that its waiters and other dining room employees have
some duties which take them into the kitchen to perform
and that on occasion some of its kitchen employees
perform duties in the dining rooms of Maxwell's Plum.
Thus, the record shows that Respondents' waiters, for
example, mix precut salads with dressings, add condiments
to steak tartar (raw chopped steak), scoop up ice cream for
dessert orders, put garnishes on hot meat dishes, arrange
vegetables, parsley, and tomatoes on serving dishes to
make them "look nice," prepare espresso coffee, and
assemble their orders in the kitchen from either the hot or
the cold food sections. With respect to the Plum's kitchen
employees, the record shows that the Plum's executive
chief, whose principal duties are in the kitchen, will from
time to time enter the dining room in his white chef's
uniform to observe the manner in which the waiters serve
the food to the guests and that on the occasions the
restaurant serves buffet meals some of the kitchen help will
take their places behind the buffet tables to offer assistance
to the patrons. The record further shows that some of the
Plum's restaurant functions are handled by both kitchen
and dining room employees, such as the preparation of
coffee, the cutting of bread, the ladling of ice cream, and
the placement of garnishes on dishes, such as olives,
lemons, parsley, pickles, and fruit. Notwithstanding these
mixed duties, the kitchen personnel is under the direction
of kitchen supervisors and the dining room personnel is
under the direction of dining room supervisors.
Although the above overlapping of kitchen and dining
room employee functions does exist at Respondents'
Maxwell's Plum restaurant, the difficulty with Respon-
dents' contention that such overlapping warrants an
overall appropriate unit of all of its employees is that that
kind of overlapping is not unique to the Plum but is
common practice at all good restaurants in New York City
where without exceptions, when organized as all the well
known restaurants appear to be, they are organized along
craft lines with a separate appropriate unit for kitchen
employees and a separate appropriate unit for dining room
employees. This is established by the uncontradicted
testimony of Local 89's aforementioned Secretary-Treasur-
er Rey and Local I's Business Agent Morris Swirn, who
between them have approximately 85 or more years of
experience in the restaurant trade in New York City.
Accordingly, the Trial Examiner finds that the slightly
overlapping functions of Respondents' kitchen and dining
room employees not only do notjustify an overall unit for
all of the Plum 's employees but would be contrary to the
universal practice of all good New York City restaurants,
with similar employee functional overlapping , of having
their kitchen and dining room employees organized
separately by different craft unions for representational
purposes.
Conclusion
Based on the foregoing findings of fact, the Trial
Examiner finds and concludes that all kitchen employees
of the Respondents, employed at their Maxwell's Plum
restaurant, exclusive of waiters, bartenders, stewards,
guards, watchmen, professional employees and all supervi-
sors as defined in Section 2(11) of the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act, as alleged in
the complaint in Case 2-CA-12207 under paragraph 9
thereof.
C. Issue as to Whether Local 89 Had Majority of
Plum 's Kitchen Employees Signed Up To Represent
Them
It is undisputed that Maxwell's Plum had a total of 39
kitchen employees at the time Local 89 made its alleged
demand for recognition on or about October 21, 1970.
General Counsel contends that Local 89 had 23 union
authorization cards from the Plum's 39 kitchen employees
on the date of its demand for recognition.
With these 23 cards General Counsel further contends
that Local 89 had a majority of 2 cards for representation
even if the total number of union authorization cards is
reduced from 23 to 21 to reflect the elimination of 2 cards
from employees Respondents contend were fired for cause
and not discriminatorily, prior 13 to Local 89's alleged
request for recognition, and even if the total disputed
kitchen staff figure remains at 39 rather than 36 in
accordance with General Counsel's contention that the
figure should be reduced to 36 to reflect the alleged fact
that 3 of the 39 kitchen employees were statutory
supervisors, not entitled to be included in the card count
for a majority.
Respondents concede that, even under these most
favorable assumptions in their favor, Local 89 would still
have a majority of 1 card; that is, 21 cards for umon
representation out of the Plum's kitchen staff of 39
employees, subject, however, to Respondents' claim that so
many of these cards are invalid for one reason or another
as to destroy the majority in favor of Local 89. These
claims of invalidity will be considered below in appropriate
order.
In the findings in a later section of this Decision it is
determined that kitchen employees Marcel LeBloas and
Jose Ferreira were discriminatorily discharged prior to the
time of Local 89's request for recognition because of their
union activities. These two employees had signed union
cards in favor of Local 89 prior to their discharge, but their
two cards were not included in the counts for majority
13 As will be seen below, General Counsel contends that the cards of the counted because they were discriminatorily discharged prior to Local 89's
two involved employees, Marcel LeBloas and Jose Ferreira, should be demand for recognition
MAXWELL'S PLUM
shown in the above two paragraphs . Due to the determina-
tion made below that they were discriminatonly dis-
charged , the Trial Examiner here finds that they were still
Respondents ' "employees" under the Act at the time Local
89 made its demand for recognition and that Local 89 was
therefore entitled to include their cards in the count for a
majority at the time of its request for recognition. With
these two additions , Local 89 would have 23 cards out of
the 39 employees employed in the Plum 's kitchen and thus
a majority of 4 cards.
The above counts as noted are on the assumption most
favorable to Respondents that the Plum's kitchen staff
consisted of 39 nonsupervisory employees on the date of
the Union's request for recognition . General Counsel's
position, however , is that the 3 stewards among Respon-
dents 39 kitchen employees are in fact supervisors within
the meaning of the Act and that the kitchen unit is thus
only 36 in number . The indicated stewards are Robert
Willis , Dominic Augello, and Joe Largana ; Local 89 has
no union authorization cards from these three stewards.
With a kitchen unit of only 36 employees brought about by
the elimination of the 3 stewards from the unit , Local 89's
claimed majority of 4 under the findings of the above
paragraph would be increased to 5. Similarly with a
kitchen unit of only 36, under Respondents ' own count,
Local 89 would have a majority of 4. But as Respondents
deny that the three stewards have statutory status as
supervisors , there is an issue as to their status.
The testimony of kitchen employees Jose Ferreira, the
aforementioned discriminatee , and Santos Bonet , a runner,
who still works for the Plum, leaves no room for doubt that
they received work orders from the Plum 's stewards.
Ferreira, a Spanish -speaking man who could testify only
through an interpreter , could only remember the first name
of the man he worked under as "Joe" when he first started
employment at the Plum, but his testimony is clear that
"Joe" was known as a steward . Santos, who as a Spanish-
speaking person had much difficulty testifying in English
notwithstanding his long residence in the United States,
identified Joe Largana and Robert Willis as the stewards
he worked under and still works under . It is also found by
inference that the Joe under whom Femera worked was
the same Joe Largana. From the credited testimony of
Ferreira and Santos , it is found that Respondents ' stewards
have at all times here material had and exercised the
authority to "assign" and "responsibly to direct" certain
kitchen employees in Respondents ' restaurant , and accord-
ingly are supervisors within the meaning of Section 2(11) of
the Act. 14 The testimony of Local 89 Secretary-Treasurer
Rey shows that this is in accord with the universal practice
of better restaurants , such as the Plum , in the greater New
York City area . Because stewards are deemed supervisors
14 Even the grudging answer of Warner LeRoy, Maxwell's Plum's self-
described "owner," to a question put to him by his own counsel appears to
admit that his stewards had the authority to assign work to other employees.
Asked by his counsel, "Do the stewards who work in your restaurant direct
other employees in their jobs during the course of a day?" LeRoy replied,
"They would direct other employees only to the extent that they would ask
someone to pick up something in a storeroom . " The testimony of
Robert Willis, the only Plum steward to testify herein with respect to his
authority over other employees , was evasive Speaking of Bonet , his runner,
Willis under cross-examination testified that, "when I receive the meat, he
21
by the Union, Local 89 does not accept stewards as
members.
Summarizing the entire record, it is found and concluded
that at the times here pertinent the Respondents' kitchen
unit without the 3 stewards consisted of 36 nonsupervisory
employees on the date of Local 89's request for recognition
and that the local on that date had authorization cards
from 23 of these 36 employees to represent them in
bargaining negotiations with Respondents, or a majority of
5.15 However, as noted, Respondents raise questions as to
the validity of so many of the Union's authorization cards
as to destroy Local 89's majonty if Respondents' validity
objections to the cards are sustained.
One of Respondent's objections to the validity of the
employee-signed cards is that they were not dated by the
employees, but by Local 89's Secretary-Treasurer Rey.
Respondents contend that, "To establish a majority as of
the date of an alleged demand for recognition, authoriza-
tion cards should be concurrently signed and dated by
employees to substantiate the majority status of the
union." Respondents offer no authority to support their
contentions that "authorization cards should be concur-
rently signed and dated by employees."
The record leaves no doubt that the employees after
signing the cards meant for the union officials to fill in all
blanks in the cards, including the dates, since most of the
signers were foreign born and illiterate in the English
language. Union Representative Rey's credited testimony
shows that he inserted the dates on the cards either at a
union meeting or upon receipt thereof from an employee-
solicitor. Despite some initial confusion of memory, Rey's
detailed and credited testimony leaves no doubt that he
dated the 23 cards on the dates shown thereon, to wit, 19
on October 1, 1970, and 4 on October 21, 1970. Rey's
credited testimony further shows that each of the 23
signed cards were dated and otherwise filled out prior to
the time Rey called upon the Plum's owner, Warner
LeRoy, with Local 89's request for recognition. These
findings are corroborated by the fact that a copy of a letter
of record herein by counsel for Local 89 shows that on
October 22, 1970, he mailed an election petition 16 to the
Regional Director, together with the 23 signed cards as
showing of interest. (G.C. Exh. 15.) But in the opinion of
the Trial Examiner these cards, validated as they were at
the trial as expressing the free will and desires of the
employees to be represented by Local 89, would be valid
even without any dating thereon under the showing that
Local 89 had possession of the signed cards at the time it
made request for recognition to Respondents.
Respondents' other validity objections relate to eight
specific cards on various grounds. Two of these relate to
the aforementioned discriminatees, Marcel LeBloas and
Jose Ferreira. Respondents contend that their authoriza-
[Bonet] will help me put it away He will help me taking morning
requisition[s] upstairs " When asked, "Who tells him to do that?" Willis
evaded the question with the reply, "His job description is written ... "
15 Counsel for General Counsel contends that Local 89 at the times here
pertinent had a majonty of only four cards as against the above finding of a
majority of five , but whether the figure is four or five Local 89 had a
majority under either count.
16 Pursuant to normal practice , the petition is being held up pending the
resolution of the charges herein
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion cards "should not be counted in determining Local
89's majority status since neither employee was employed
on the critical date." Inasmuch as heretofore indicated it is
determined in a later section of this Decision that these two
employees were discnminatorily discharged prior to Local
89's request for recognition and therefore were "employ-
ees" within the meaning of the Act at the time of the
request, their cards are found valid and entitled to be
counted in determining the local's majority status. It is
found that their cards were properly included in the above-
determined majority count.
The remaining six cards to which Respondents object on
various grounds of validity are those of kitchen employees
Juan Alicea, Luis Sigollen, Dionicio Lorenzo, Manuel
Lugo, Victor Vintimillia, and Osvaldo Avelino.
Respondents object to the card of Alicea, a cook, on the
ground that the card does not bear his personal signature.
Alicea acknowledged that the card does not contain his
personal signature, but his credited testimony shows that
he instructed and authorized a fellow kitchen employee to
sign his name on the card in evidence herein as he was
engaged at the time in his kitchen duties as a cook. His
testimony further shows that having worked in restaurants
for 10 years he fully understood the meaning and purpose
of the card and that it reflected his free will and desire to
be represented by Local 89 in collective-bargaining
negotiations with the Respondents. Under these circum-
stances the Trial Examiner finds Alicea's card valid and
properly included in the count of Local 89's majority.
Respondents next object to a card bearing the signature
of Luis Felix Sigollen, a dishwasher (G.C. Exh. 3-C), on
the ground that he "was not employed at the time he
allegedly signed the card." Like virtually all other cards,
Sigollen's card was left undated at the time he signed it but
the card was later dated October 21, 1970, by Local 89's
secretary-treasurer, Rey. Sigollen's signed card was ob-
tained by the aforementioned discnminatee and kitchen
worker, Jose Ferreira. According to Respondents' records
Sigollen's first day of employment at the Plum was October
19, 1970. Respondents seek to show through Ferreira's
testimony that he obtained Sigollen's signed card on
September 27 or 28, 1970, or some 3 weeks prior to the
time he was employed by the Plum. This is the basis for
Respondents' contention that Sigollen's card should not be
counted in the count for union majority on the ground that
Sigollen was not employed by the Plum at the time he
signed the undated card. Sigollen's card was 1 of some 15
such other cards Ferreira obtained from other coworker
kitchen employees at various times in September 1970.
Some 7 months later at the trial herein Ferreira, as might
be expected, found it difficult to remember with certainty
the precise dates on which he received each of the signed
but undated cards he had solicited from his coworkers. His
rememberance of the date on which he solicited and
received Sigollen's signed card was by reference to his
uncertain memory of the date on which he received the
card from another kitchen employee, Ampara Almonte, as
the following excerpts from the transcript show:
Q. [By counsel for General Counsel] Was that
[Almonte 's card] signed in your presence?
A. Yes.
TiuAL EXAMINER: When?
A. I do not recall.
s s s • s
Q. [By General Counsel] Was it before you were
released by the doctor on October 6th?
MR. DARnY: Objection....
r • s • s
Q. Did you ever report back to work after your
injury had healed?
A. Yes.
Q. Did you receive that card [Almonte 's] after your
injury had healed?
A. Yes.
Q. Did you receive that card before that date?
A. Yes.
Q. I will ask you if you received a card from Luis
Feliz [Sigollen].
A. Yes.
Q. Do you remember the approximate date that
you received that card from him?
A. On the same day that I received the first card
you showed me [Almonte 's card] . 17 I don 't remember
the exact date. [Emphasis supplied.]
If full reliance were given in Ferreira 's above testimony,
it would appear that he obtained Sigollen's signed card
some time prior to October 6 , 1970, more specifically on
September 27 or 28, 1970, but as there is no evidence that
Sigollen worked for Respondents in September 1970, and
no evidence in the case that he was on Respondents'
premises prior to October 19, 1970, it is obvious that
Ferreira could not have gotten a signed card from Sigollen
the latter part of September and that Ferreira was thus
honestly mistaken in giving September 27 or 28, 1970, as
the date on which he received Sigollen's signed card.
Accordingly, the Trial Examiner does not credit Ferreira's
testimony that Sigollen signed his card in September 1970.
At the trial, the Trial Examiner placed the Respondents on
notice that it would be a "wholly unlikely inference" that
Sigollen signed a union card for Local 89 before he began
his employment with Respondents on October 19. In view
of this state of the record , the Trial Examiner further
placed the Respondents on notice that the burden of going
forward to show that the card, bearing the date of October
21, 1970, was actually signed by Sigollen about a whole
month prior thereto or before he began his employment at
Maxwell's Plum was upon the Respondents . This burden
of going forward was not met by Respondents . The Trial
Examiner finds that Sigollen signed his union authoriza-
tion card in the presence of Ferreira and upon his
solicitation on a date no earlier than October 19, 1970,
when Sigollen took up employment with Respondents and
no later than October 21, 1970; that the card was dated
17 Ferreira testified that "I don't recall exactly" when he received
Almonte 's signed card but "believed" it was on September 27 or 28, 1970.
MAXWELL'S PLUM
October 21, 1970, by Secretary-Treasurer Rey; and that the
card was in Rey's possession at the time he made his
request to the Respondents for recognition of Local 89 as
the collective-bargaining representative of the Respon-
dents' kitchen unit. The Trial Examiner further finds that
Sigollen's card is valid in all respects and was properly
includable in the count for Local 89's majority.
Respondents next object to the validity of the cards of
Dionicio Lorenzo, pantryman, and Manuel Lugo, dish-
washer, both of whom had to testify through a Spanish
interpreter. Lugo, even through the interpreter, showed
considerable difficulty in grasping some of the questions
and in verbalizing his answers. Respondents in their brief
admit that both Lorenzo and Lugo testified that they
signed their union authorization cards in the latter part of
September 1970. However, Respondents contend that there
are contradictions in the testimony of these employees
which indicates that their cards were signed on October 22
rather than in late September 1970. As October 22 is, as the
Respondents state, "the day after Local 89 claims it
demanded recognition," they contend that the cards signed
by Lorenzo and Lugo were signed too late to be counted as
cards on hand to show majority when Local 89 made its
request for recognition on October 21.
The record, however, does not bear out Respondents'
contention that the cards in question were executed in
October. Lorenzo testified that his card was signed in the
presence of Ferreira and Hernandez at a location just
outside the restaurant. The record otherwise identifies
Hernandez as a business agent of Local 89. Respondents
seek to fix the date of that meeting as being October 22,
1970, based on other evidence that there was a meeting
outside of the restaurant on October 22 at which Ferreira
and Hernandez were present. But Lorenzo's credited
testimony plainly shows that the meeting he referred to
with Ferreira and Hernandez took place, "Around the 17th
of September or maybe a day later." There are no
contradictions in Lorenzo's testimony on this as claimed
by Respondents. Although Lorenzo testified that he signed
the card in the presence of both Ferreira and Hernandez,
he not only definitely fixed that date as around September
17, 1970, but stuck to that date under the vigorous cross-
examination of counsel for Respondents. There is nothing
inconsistent with this testimony and a possible later
meeting between Lorenzo with Ferreira and Hernandez
outside the restaurant on October 22, 1970, if such took
place. The Trial Examiner fully credits Lorenzo's testimo-
ny that he signed his card around September 17, 1970.
Lugo's card is considered next. Although Respondents
admit that Lugo testified that he signed his card the latter
part of September 1970, a close examination of his
testimony shows that he was never asked and never
mentioned the date on which he signed his card. Based on
Lugo's obscure testimony that he signed the card, "When
they went there to the restaurant," in reply to the Trial
Examiner's question, "Who gave you the card?" the
Respondents seek a finding that the card was signed on
October 22, 1970. There is nothing in the record which
would support such an inference. Lugo's card bears the
date of October 1; the testimony of Local 89 Secretary-
Treasurer Rey shows that the card was in his hands on
23
October 1, and that he inserted that date. Accordingly, it is
found that Lugo's card was signed and in the possession of
Local 89 long prior to the date it demanded recognition of
Respondents as the collective-bargaining representative of
its kitchen unit.
Respondents also attack the validity of the cards of
Lorenzo and Lugo on the ground that their testimony that
they were "for the union" is ambiguous. Their testimony,
however, leaves no doubt that they fully understood that
the cards they signed were an authorization to the Union
to represent them in collective bargaining with the
Respondents.
Based on the above findings, the Trial Examiner finds
that the cards of both Lorenzo and Lugo are valid, timely,
and were properly included in the count of Local 89's
majority at the time it demanded recognition from the
Respondents.
The card of Victor Vintimillia is also objected to on
validity grounds. Vintimillia was hired by the Plum as a
dishwasher on August 28, 1970. His credited testimony
shows that he signed the union authorization card in
evidence herein as General Counsel's Exhibit 12 about a
month after he started work at the Plum. He signed the
card at a location outside of the restaurant but adjacent to
it upon the solicitation of a man he believed to be an
employee of the restaurant, whose name he could not
recall. His credited testimony further shows that, immedi-
ately after he had signed the card, all of its other blank
spaces, including the date line, were filled in by the
solicitor. The card is dated October 1, 1970, and the Trial
Examiner finds that the card was signed on that date.
Respondents' attempt to show that the card was signed on
October 22, 1970, finds no support in the record, directly or
by inference. The Trial Examiner finds that the card was
properly included in Local 89's majority count at the time
it requested recognition from the Respondents.
Finally Respondents object to the validity of the union
authorization card of Osvaldo Avelino, a dishwasher, on
the grounds that the aforementioned Jose Ferreira "told"
him to sign the cards, that Ferreira "went to each person to
make him sign the card," and that Ferreira "talked to me
about the benefits of the union." Respondents contend
that "These statements do not establish that Avelino knew
that the card for the purpose of authorizing Local 89 to
bargain collectively for him." Any reading of Avelino's
testimony shows that the above quotations from Avehno's
testimony are taken out of context of his total testimony
and that while the words "told" and "made" may be literal
English translations of his Spanish, Avelino obviously
merely intended to say that Ferreira requested or asked
him to sign the authorization card. In more natural
translations of his testimony, the transcript at other places
shows that Ferreira "asked" him to sign the card. Ferreira
as a fellow kitchen employee was not in the position to
"tell" or "make" other employees sign a card. It is clear
from the whole of Avelino's testimony that he fully
understood and sympathized with the efforts being made
to bring Local 89 in to represent the Plum's kitchen
employees in collective bargaining with the Respondents
and that he signed his own union authorization card for
this purpose. His direct testimony shows that he signed his
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card "because I liked the idea of the union" and because
he "had already worked in another place where was a
union" and knew what it was all about. It is found that
Avelino's card was signed by him personally prior to the
time Local 89 made its request to Respondents for
recognition, that Avelino knew that the purpose of the card
was to give Local 89 the authority to represent him in
collective bargaining with the Respondents, and that his
card was properly included in the majority count claimed
by Local 89 at the time it made its request for recognition.
Contrary to Respondents' assertion,18 there is no
evidence of any kind in the case that any of the cards were
obtained by threats or coercion. Summarizing, it is found
that each of the 23 union designation cards of record
herein represent the free will and desire of each of the
employee-signatories thereon to be represented by Local
89 in collective bargaining with the Respondents.
Based on the foregoing evidentiary findings, it is found
and concluded that Local 89 had authorization cards from
a majority of the employees in Respondents' kitchen unit
at the time 19 Local 89 made its request to Respondents for
recognition as the exclusive collective-bargaining repre-
sentative of its said unit.
D. Issue as to Whether Local 89 Requested
Recognition and the Date Thereof and Whether the
Respondents Refused Recognition
The complaint in Case 2-CA-12207 alleges that Local 89
on or about October 21, 1970, requested the Respondents
to recognize it as the exclusive bargaining representative of
its kitchen unit for purposes of collective bargaining, and
that the request was denied as of the same date.
Secretary-Treasurer Rey of Local 89 testified in support
of the allegations.
Warner LeRoy, Respondents' chief executive and self-
described owner of Maxwell's Plum, on the other hand, by
his testimony denied the allegations. LeRoy admits that he
had a visitation from Rey and two of his associates in the
latter part of October 1970, at the premises of the Plum.
However, he denies that he received any request at that
visitation from these union representatives for recognition
of Local 89 as the bargaining representative of the Plum's
kitchen employees. LeRoy also denied that the meeting
took place on October 21 and instead claimed that the date
of the meeting was October 23. Respondents, on the basis
of LeRoy's testimony, contend that they "did not refuse to
recognize Local 89 since no demand for recognition was
made."
Of the two versions of the Union's visitation to
Maxwell's Plum, the record compels the crediting of Rey's
version. It is undisputed that Rey and LeRoy have known
each other for a period of at least 2 years prior to the time
here under discussion because of a prior contact relating to
Local 89's efforts to organize the Plum's kitchen employ-
ees. Rey's testimony shows that he and two of his
associates called upon LeRoy in the mid-afternoon of
October 21, 1970, where in Rey's own words he, as
spokesman for Local 89, "told Mr. LeRoy I am coming
here to see you again because we have the majority of the
employees of the kitchen of your restaurant signed up with
the union, and I would like to have an appointment to
discuss a collective-bargaining agreement." LeRoy replied
that he would refer the matter to his attorney. This
testimony by Rey, both as to the substance of the meeting
and the date thereof, was corroborated by Anthony
Kolgate, one of the two union representatives from Local
89 who accompanied Rey. The date of the meeting is
further corroborated by Rey's diary which shows that it
took place on October 21, 1970, a Wednesday. Following
his meeting with LeRoy, Rey caused a petition for an
election to be filed with the Board. The petition (Resps.
Exh. 21) alleges that a request for recognition was made to
and denied by Respondents on October 21, 1970. The
petition was transmitted for filing under a transmittal letter
dated October 22, 1970. (G.C. Exh. 15.) The petition and
its transmittal letter of October 22 is not only further proof
that the meeting between Rey and his colleagues with
LeRoy must have taken place on October 21 but also
shows that LeRoy's testimony that the meeting took place
on October 23, rather than October 21, is patently wrong.
[The question of whether a union's request for recogni-
tion was made on a particular day or a day or two earlier
or later should have little or no bearing on the question of
whether or not the involved Employer unlawfully rejected
the request. But in the present case the Respondents have
gone to great length in an attempt to show that the meeting
of the union representatives with LeRoy took place on
October 23 rather than October 21. Counsel for Local 89
contends that this is because Respondents seek to make it
appear that there was no connection (on another issue)
between their alleged promises of wage increases and Local
89's request for recognition by their attempt to show that
the promises of the wage increases were made prior to
Local 89's request for recognition. This is in line with
Respondents' contention that they "had no knowledge of
Local 89's organizational drive when it granted wage
increases ." (Resps. br., p. 63.) The Trial Examiner finds
that Respondents' true motive for seeking a finding that
Rey's meeting with LeRoy took place on October 23
instead of its actual date of October 21 as found above is
that it would be supportive of Respondents' efforts to
obtain a finding on another issue herein that the wage
increases the restaurant granted to its kitchen employees in
October 1970 was not for the purpose of thwarting the
efforts of Local 89 to organize these employees as charged
in the complaint. The latter issue will be dealt with below
in a subsequent section of this Decision.]
LeRoy's version of the meeting he had with Rey, which
is wholly different from Rey's, is as follows:
I saw them, I said hello, how are you. They said fine.
They said, you know, everything is union these days. I
said, well, that's not for us to discuss. And I said, why
don't you gentlemen come here to dinner sometime, I
would be glad to have you as my guests. And they said
thank you, and that was the whole conversation.
18 Resps br at p. 31, fn 9
19 As shown below, the date on which Local 89 made its request to
Respondents was October 21, 1970.
MAXWELL'S PLUM
The Trial Examiner rejects this version of the meeting as
wholly incredible in the light of the entire record including
countenance factors, but also for the reason as stated in
Local 89's brief, "it bears no relationship to the way real
people-especially veteran union officers-behave."
Based on the foregoing evidentiary findings of fact, the
Trial Examiner finds and concludes that on October 21,
1970, Local 89 requested Respondents to recognize it as the
exclusive collective-bargaining representative of their
employees in the above-described kitchen unit and
requested Respondents to bargain collectively with it as the
exclusive bargaining representative of their employees in
the said unit, with respect to rates of pay, wage, hours of
employment, and other terms and conditions of such
employees. The Trial Examiner further finds and con-
cludes that on the aforementioned date of October 21,
1970, the Respondents refused, and since that date have
continued to refuse, to recognize Local 89 as the exclusive
collective-bargaining representative of Respondents' em-
ployees in its described kitchen unit.
E. Issue as to Whether Respondents
Discriminatorily Discharged Two Kitchen Employees
1. Discharge of Jose Ferreira
From the conclusionary findings in this section, it was
stated above-in connection with another issue that Jose
Ferreira and Marcel LeBloas "were discriminatonly
discharged prior to the time of Local 89's request for
recognition (October 21, 1970), because of their union
activities." The basic evidentiary findings upon which
these conclusionary findings were reached are stated
below.
Jose Ferreira, a young man of 20, was hired by
Respondents as a dishwasher on March 3, 1970, and some
2 months later was promoted to pantryman whose duty,
among others, was the preliminary preparation of lobsters
for service to diners. The complaint alleges that Ferreira
was discriminatorily discharged on October 6, 1970.20
Respondents' answer, while denying any discrimination in
Ferreira's discharge, appears to admit that his discharge
took place on the alleged date of October 6, 1970, but at
the trial Respondents sought to prove that the discharge
took place much earlier, to wit, in the last week of August
1970. As the issue as to the date of Ferreira's discharge
appears to have been tried by consent, it will be treated as
an issue herein notwithstanding Respondents' failure to
deny the allegation that Ferreira was discharged on
October 6. This issue is incidental to Respondents'
principal defenses that Ferreira was discharged for cause
and that Respondents had no knowledge of Ferreira's
union activities at the time of his discharge, but is
important because if his discharge occurred in August,
Respondents could not be charged with knowledge of
Ferreira's union activities as they did not start until
September 17, 1970.
On August 21, 1970, about 4 p.m., Ferreira received a
serious knife-cut injury to the back of his right hand while
20 Par. 6 of the complaint in Case 2-CA-12207 simply alleges that
Ferreira was discharged on October 6, 1970, and LeBloas, the day before
Par. 8 of Respondents ' answer reads "It admits the allegation contained in
25
working in the kitchen of his Employer. The accident
happened as he was handling a lobster. There are several
versions of the accident.
Ferreira's version is as follows . He testified that after he
picked up the lobster and was carrying it back to a table
for preparation, he somehow slipped and fell and severely
cut the back of his right hand with the knife he had in his
other hand. It is undisputed that Ferreira, bleeding
profusely, was taken to a hospital where his hand was
treated and the cut stitched. It is also an admitted fact that
at the time of the accident the supervisor of the kitchen,
Jean Brecq, the executive chef, was away from the
restaurant on vacation. It is also undisputed that Ferreira
after some 4 hours at the hospital returned to the
restaurant and reported to Robert Tanzi, a dining room
manager, in the absence of Brecq. Ferreira's credited and
undisputed testimony also shows that Tanzi sent him
home, but told him to come back when he felt better.
Respondents contend, however, that Tanzi fired Ferreira a
week or so later in the last part of August because he held
him responsible for the accident in which he was injured.
Respondents did not call Tanzi to establish that he had
fired Ferreira a week or so after the accident, but rely on
the testimony of Brecq as hereafter more fully related that
when he got back from his vacation in the first week of
September, Ferreira spoke to him (Brecq) about having his
job back and that at that time he "told him that he had
been discharged the week before and I was just repeating
to him again that he couldn't work any more for Maxwell's
Plum." Ferreira categorically denied that such a conversa-
tion took place and testified that it was not until October 6,
1970, when he told Brecq that he had a medical release and
was ready to return to work that Brecq told him he could
not have his job back.
On September 14, 1970, the Respondent reported
Ferreira's injury of August 21 to the Workmen's Compen-
sation Board of the State of New York. The report states
that the injury occurred while Ferreira was handling a
lobster with a knife and does not mention that anyone else
was involved with the accident. The report requires the
filing of a form C-11 "each time there is any change in the
employment status" of the employee (i.e., Ferriera) "as
reported in item 22 above." Item 22 asks, "Has employee
returned to work?" Respondents replied "No" to this. The
transmittal letter on the report does not show that a form
C-11 was transmitted with the report and the report does
not have a form C-11 attached to it. (G.C. Exh. 14 a and b.)
After his treatment at the hospital, Ferreira was under
the care of a private physician for his injured hand until
October 6, 1970. On that date his doctor released him and
told him that he could go back to work. Reporting back to
work that same day, Ferriera's credited testimony shows
that after Brecq, who is in complete charge of the kitchen,
had told him that he could not come back to work at the
Plum any more, Tanzi , the aforementioned manager of one
of the Plum's two dining rooms, came by and entered into
the conversation. Ferreira's credited testimony shows that
in response to his question as to why he could not have his
Par. 6 of the complaint that the persons named therein were terminated
from employment."
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
job back, Tanzi replied, "You cannot work here any more
because you put your nose M places you don't have to."
The Trial Examiner finds that this was a reference to
Ferreira's efforts to get the Plum's kitchen employees
organized as detailed below. Respondents did not produce
Tanzi to deny that he had made the statement attributed to
him by Ferreira. Brecq's denial that Tanzi made the
statement is not credited. The record as a whole shows that
Respondents have been at all times extremely sensitive,
alert, and resistant to any union efforts to organize their
restaurant.
Prior to his third and final visit of October 6 to his
physician, Ferreira had made office visits to the doctor on
September 2 and 16 and after each of these office visits he
would stop at the Plum to visit with the employees in the
kitchen where he expected to return to work as soon as he
had a medical release. After leaving the restaurant's
premises on his visit of September 16, he was met by Jorge
Hernandez, a union organizer for Local 89, on the street
dust outside the employees' entrance of the restaurant.
From where they were standing they were visible from the
adjacent interior of the restaurant. Hernandez inquired
whether Ferreira worked in the restaurant and upon
receiving an affirmative answer, he sought his assistance in
organizing the Plum's kitchen employees. Ferreira readily
agreed; he then signed a union authorization card in the
presence of Hernandez, and received a supply of such
cards for distribution among Plum's kitchen employees.
The next day, September 17, 1970, Ferreira obtained the
signatures of about four of his fellow employees on the
union cards; on September 18, 1970, he signed up about six
more kitchen employees; and on September 27 or 28, 1970,
he succeeded in getting four more cards from Respondents'
kitchen employees. All of these solicitations by Ferreira
took place in Respondents' kitchen and all the cards were
signed in the kitchen.
Respondents' defense is that Ferreira was discharged for
cause because his own misconduct caused the accident of
August 21, 1970, and that the discharge took place in the
latter part of August within a few days after the accident
and not on October 6, 1970, as testified by Ferreira. It is
part of Respondents' defense that Ferreira was discharged
by Tanzi during Brecq's absence from the kitchen on
vacation. It is also part of Respondents' defense that Brecq
told Ferreira as early as the first week in September 1970,
when Ferreira asked him whether he could have his job
back when he had a release from his doctor, that he
(Ferreira) had "been discharged the week before and I
(Brecq) was dust repeating to him again that he couldn't
work anymore for Maxwell's Plum." Tanzi was never
called by Respondents to testify that he had terminated
Ferreira. Respondents rely on Brecq's testimony to prove
that Ferreira had been discharged in August within a few
days of his kitchen accident.
To prove that the accident was caused by Ferreira's
horseplay, Respondents called Evans Pierre, an 18-year-old
boy from Haiti who works in the Plum kitchen during the
summer and attends high school in Brooklyn during the
school year. Pierre impressed the Trial Examiner as being a
highly intense and emotional person. Pierre's testimony
shows that both he and Ferreira, with whom he is on
unfriendly terms, were in the same part of the kitchen on
August 21, 1970, when Ferreira was injured while handling
a lobster, but his'testimony of, what led up jto; the accident'is
entirely different. It will be recalled that Ferreira testified
that as he was carrying the lobster he slipped and fell and
cut his right hand with the knife he had in his left hand.
Pierre, on the other hand, testified that the accident
happened as Ferreira in horseplay was trying to put the
open-clawed lobster in his hand against Pierre's resistance
and that at Ferreira's second attempt at this, he held up a
knife against it and that somehow the knife slipped and
both he and Ferreira received cuts on their hands.
Respondents also reported Pierre's injuries to the Work-
men's Compensation Board, as it did in Ferriera's case,
stating the accident to Pierre occurred on August 21, 1970,
while he was cleaning a lobster.21 The two Workmen's
Compensation reports show that both Pierre and Ferreira
were taken to the same hospital but for some unexplained
reason, Respondents' report on Pierre is dated August 28,
1970, and the one on Ferreira is dated September 14, 1970.
The report on Pierre, like the one on Ferreira, does not
show that anyone other than Pierre was involved in the
accident. The report on Ferreira shows a question mark
after the question as to the "Probable length of disability."
The same question in Pierre's report is answered "Ten
days," but his testimony shows he was back at work the
next day whereas it took Ferreira some 6 weeks to recover
from his injury.
Wajih Jahl, a relief cook, testified in behalf of the
Respondents as a witness to the accident of August 21,
1970, claiming that he was present at the accident. His
testimony is inconsistent. In his direct testimony he stated
that he was in the same area in which Ferreira and Pierre
were at the time of the accident, but that his back was
turned to them when he heard a commotion and that,
when he turned to see what had happened, he saw Pierre
with a knife in his right hand trying "to hit a lobster22 and
he hit Jose [Ferreira] and himself." On cross-examination
Jalil was asked by counsel for General Counsel, "was [it]
your opinion when you turned that Mr. Pierre was trying
to hit the lobster?" Jalil replied inconsistently with his
above direct testimony, "I don't say that. I say I saw the
knife-and the same time I turned around it was in the
hand of both guys."
A final version of what led to the kitchen accident of
August 21, 1970, was given by Francisco Gabriel, who at
the time of the trial had been in Respondent's employment
for about a year as a preparation man in which position he
did such things as prepare salads and hamburgers. His
union authorization card having been received in evidence
upon the testimony of Ferreira who had solicited it, he was
first called by counsel for Respondents in an effort to show
that he did not understand the nature of the card, but this
effort failed and the examination fortified the fact that he
knew when he signed the card that it was to bring the
21 The two reports are identical as to the date of the accident and the accident occurred while the employees were preparing a lobster
approximate time of the day thereof. Similarly the description of the 22 Presumably in Ferreira's hand
accident in each report is virtually the same Both reports state that the
MAXWELL'S PLUM
Union in to represent the kitchen employees. Counsel for
General Counsel thereupon took Gabriel over as a rebuttel
witness for examination concerning the kitchen accident of
August 21. Gabriel testified that he was present at the time
of the accident and that the only other person there besides
Ferreira, Pierre, and himself was Jorge Martinez . He stated
flatly that the aforementioned Wajil Jalil was not at the
scene of the accident. Gabriel described the accident as
follows: "Jose Ferreira was chopping the lobster. The
Haitian [Pierre] came over and tied to develop a fight with
Ferreira. He went from behind and wanted to cut the
lobster. Jose Ferreira was surprised, acted and jerked and
at that moment he was cut. " His further testimony shows
that by the word "fight" he meant that Pierre was
horseplaying with Ferriera. Martinez, the only other person
who saw the accident (according to Gabriel), was not
called by Respondents as a witness. Gabriel's testimony
shows that he had not spoken to anyone about the accident
prior to his questioning as a rebuttal witness. Since
Gabriel 's testimony was unrehearsed and spontaneous, this
factor weighs heavily in favor of the credibility of Gabriel's
testimony.
The Trial Examiner credits the versions of the accident
given by Ferreira and Gabriel and rejects all other
versions. The Trial Examiner also credits Gabriel's
testimony that Jalil was not at the scene of the accident
when it happened. Jahl's own conflicting testimony as to
what happened at the accident gives credence to Gabnel's
flat assertion that Jalil was not present at the place and
time of the accident . Ferreira under cross-examination
acknowledged that another person was also involved in the
accident, but could not give any details concerning that
other involvement. This appears to be because the accident
happened so suddenly and unexpectedly and left Ferreira
bleeding so profusely that he became generally unaware of
anyone except himself. His testimony shows that a nerve in
his middle finger was severed in the accident. On the basis
of all the evidence of record, the Trial Examiner finds that
both Ferreira and Pierre were involved and injured in the
accident. The Trial Examiner further finds upon the basis
of the credited versions of the accident that it was brought
about by Pierre's misconduct or horseplay not by Ferreira.
Since the Trial Examiner does not credit Jalil's testimony
that he was present when the accident happened , he does
not credit his testimony that he reported the accident to the
back dining room manager, Tani.
Discussion and Conclusions
Respondents are seeking to show that they terminated
Ferreira for cause because they held him responsible for
the accident of August 21, 1970, and that his termination
took place in the last part of August 1970, because of that
incident . If it were found that Ferreira was discharged in
late August 1970, it would naturally follow that Ferreira
was not discriminatorily discharged even if he was not at
fault for the accident because the record leaves no doubt
that his union activities did not commence until September
17, 1970, and that thus the Respondents could not be
charged with terminating him in August 1970 for his
subsequent union activities.
The record, however, compels the conclusion that
27
Respondents discharged Ferreira on October 6 , 1970, as
alleged in the complaint and not in late August 1970.
Tanzi , the supervisor whom the Respondents assert fired
Ferreira late August 1970, for misbehavior leading to his
accident , was not called by Respondents as a witness. Thus
there is a credibility issue between the testimony of Brecq,
the top kitchen supervisor , who testified that he told
Ferreira the first week in September 1970 that he had been
fired the week before in his (Brecq 's) absence and would
not be rehired , and the testimony of Ferreira who testified
that Tanzi told him right after the accident to come back to
work as soon as he was well and further testifying flatly
denied that he had any conversations thereafter with
anyone about coming back to work until October 6, 1970,
when he was told by Brecq for the first time that he would
not be taken back.
As between this conflicting testimony the Trial Examiner
credits Ferreira's testimony based on his observation of the
two witnesses and a number of other factors . One of these
is that Respondents should have called, but did not call,
Tanzi to prove its assertion that he had actually discharged
Ferreira about a week after his accident in late August.
Another is that the above findings show that the accident
of August 21, 1970, was not Ferreira's fault and that
Respondents were thus seeking a pretext to justify
Ferreira's discharge and were seeking to date it back to
relate to the accident . Although it is customary for large
employers to keep exact employment records , Respon-
dents , who hire more than 100 employees , produced no
record evidence of the date of Ferreira 's discharge.
Furthermore, Respondents' Workmen's Compensation
report of September 14, 1970 , on Ferreira's accident of the
preceding August 21 , does not show or in any way indicate
that he had been terminated , but on the contrary carries
the inference that he was still an employee of Respondents.
The fact that Ferreira was permitted to pay fairly
prolonged visits to the employees in Respondents ' kitchen
shows that he regarded himself as an employee on sick
leave and that management regarded him in the same light.
Respondents ' contention that they had no knowledge of
Ferreira's union activities on the date of his discharge on
October 6, 1970, cannot be credited. As shown above,
Ferreira's credited testimony shows that on the date of his
discharge when Ferreira asked why he was not taken back
now that he had a medical release, Tanzi replied that it was
"because you put your nose in places you don't have to."
As shown above, the Trial Examiner finds that this was a
clear reference to Ferreira's extensive union activities in
organizing the kitchen help which could not have escaped
Respondents ' notice as Ferreira had single-handedly
signed up approximately 14 employees in Respondents'
kitchen while they were at work.
In summary it is found that Ferreira was discriminatorily
discharged on October 6, 1970 , because of his union
activities in behalf of Local 89.
2. Discharge of Marcel LeBloas
The complaint alleges that Marcel LeBloas was discrimi-
natorily discharged on October 5, 1970. Respondents'
defense is that LeBloas was hired as a temporary
replacement for another employee on leave and discharged
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when that employee returned to work. Although the
Respondents at the trial would not stipulate as to the exact
date of LeBloas' discharge, the Respondents in their bnef
concede that the discharge, as alleged, took place on
October 5, 1970.23
LeBloas' testimony shows that he was hired on June 10,
1970, and was terminated by Chef Brecq after a week's
notice on the now agreed date of October 5, 1970. LeBloas
testified that Brecq gave him as the reason for his
termination that, "There wasn't enough work so we had to
cut off on the personnel." On the date of his discharge,
Brecq gave LeBloas a letter on a Maxwell's Plum
letterhead addressed "To Whom It May Concern,"
reading, "Due to an overall cut in the payroll we have
found it necessary to terminate the services of Mr. Marcel
LeBloas," signed by Brecq as chef. LeBloas had had a prior
brief period of employment with Respondents between the
latter part of 1969 and early part of 1970 which he had
voluntarily severed.
LeBloas at the time of the trial herein had been a
member of Local 89 for some 8 years. Asked whether
Brecq knew of his membership in Local 89, LeBloas
answered, "I think so, but "I'm not sure." It is a certainty
that Brecq, a man.of quick intelligence, would not have
hired LeBloas as a sauce cook without having inquired as
to where he had prior employment and experience as a
sauce cook and that Brecq would have knowledge of
whether or not the restaurants LeBloas had worked for
were union shops or not, particularly in view of the
extreme sensitivity the record here as a whole shows that
Respondents have about having their restaurant unionized.
From these findings, the Trial Examiner infers and finds
that Brecq suspected or knew that LeBloas was a member
of Local 89 at the date of his hire.
LeBloas' credited testimony shows that, about a week
before his discharge and prior to Brecq's notice to him that
he would be terminated, he signed a union authorization
card at the offices of Local 89, signifying his desire to be
represented by that Union in collective bargaining with the
Respondents. The card bears the date of October 1, 1970,
but the date was inserted by a union representative, not by
LeBloas. The October 1 dating of the card does not alter
LeBloas' above-credited testimony that he signed the card
prior to the time Brecq told him he was dispensing with his
services. There is no evidence that Brecq knew about
LeBloas' card at the time he notified LeBloas of his
termination, but it is inferred and found from Brecq's
knowledge of LeBloas' union background that Brecq
would suspect that LeBloas would be among the first to
sign a union authorization card.
Brecq testified that he had hired LeBloas as a temporary
replacement for sauce cook Daniel DeNais who was going
or had gone to France on a 3-month leave of absence to get
married; that he hired LeBloas "on the basis he would
replace" DeNais; and that when DeNais came back he
would automatically have his job back. He further testified
that he gave LeBloas 1 week's notice of termination when
DeNais returned to New York for reemployment with
Respondents. LeBloas, upon cross-examination when
asked if he had been hired as a temporary employee,
replied, "I think so," but immediately qualified that answer
by stating that, "Nobody had told me anything." Similarly
in his pretrial affidavit LeBloas stated, "I think that I was
hired as a temporary employee to replace Daniel DeNais."
However, LeBloas has nowhere stated that he was told this
by Brecq at the time of his hiring. On the contrary, he
testified that when he was hired Brecq told him that it was
because "we needed more people." In a followup question,
he was asked if Brecq told him when he was hired that he
would have to leave the job after a period of time. LeBloas
emphatically and flatly denied this with the answer, "No,
not at all." The Trial Examiner credits this testimony by
LeBloas; Brecq's testimony that he hired LeBloas as a
temporary employee is not credited. LeBloas gave the
impression of being scrupulously honest in his reply to
questions put to him. It is inferred and found that LeBloas'
reply, "I think I was hired as a temporary employee to
replace Daniel DeNais," is a mere expression of his
opinion based on what LeBloas heard from coworkers at
Respondents' restaurant after he commenced his employ-
ment there and not upon anything Brecq had told him.
Discussion and Conclusions
The principal credibility findings have been made above.
These show that at the time of LeBloas' termination notice
Respondents through Brecq either knew or strongly
suspected that LeBloas was and had been a member of
Local 89 for years and that he would lend support to any
movement by Local 89 to organize Respondents' kitchen
employees, as in fact he did by signing an authorization
card. The foregoing credibility findings also show that
Brecq at the time of LeBloas' hiring did not tell him that he
was being hired as temporary employee. The fact that
Brecq gave one explanation to LeBloas for his termination
at the time he gave him notice thereof, namely, that it was
due to an "overall cut in payroll," and a wholly different
explanation at the trial for his discharge, namely, that it
was due to his having been hired as a temporary
replacement for another employee now ready to return to
work, gives further support to the above finding that Brecq
did not tell LeBloas at the time of his hiring, as claimed,
that he was being hired as a temporary employee. It is
evident that Respondents, searching for a pretext to fire
LeBloas to disguise the fact that it desired to terminate him
because of his union sympathies, first hit upon the idea of
making it appear that he was discharged because of an
"overall cut in payroll" and then shifted to what looked
like a better pretext that this discharge was because he had
been hired as a temporary replacement. It is noted with
respect to the first reason given for LeBloas' discharge that
there is nothing in the record, which contains a great deal
of employment data in connection with other issues, to
show that Respondents engaged in any overall reduction in
payroll in the month of October 1970. If the genuine
reason for LeBloas' discharge had been that he had been
hired as a temporary employee, Brecq would have told him
so in the first place instead of telling him it was because of
13 Respondents' answer to the complaint in Case 2-CA- 12207 admits of Ferreira , the date of LeBloas' discharge was litigated by consent
that the date of LeBloas' discharge was October 5, 1970 , but, as in the case
MAXWELL'S PLUM
an overall cut in payroll. Both reasons are pretexts for his
termination because of his union sympathies.
It is found and concluded that LeBloas was discnmina-
tonly terminated on October 5, 1970, because of his known
or suspected union sympathies at a time when Respon-
dents were acutely aware of an intense drive by Local 89 to
organize Respondents' kitchen employees.
F. Issue as to Whether Respondents
Discriminatorily Discharged Three Waiters
The Charging Party involved in the discharge of the
waiters here under consideration is the Dining Room
Employees Union, Local 1, whose membership is confined
to dining room employees in contrast to the aforemen-
tioned Local 89 whose membership is limited to kitchen
employees. It will be recalled that both Local 1 and Local
89 commenced virtually simultaneous drives in the latter
part of September 1970 to organize these two separate
classifications of employees at Respondents' Maxwell's
Plum restaurant. The two independent campaigns appear
to have coincided by sheer happenstance.
The complaint here under consideration (Cases
2-CA-12166-1 and -2) alleges that the Respondents on or
about September 23, 1970, discnminatonly discharged
employees Carlos Miranda, Richard Esposito, and Michael
Wolf. The three men held positions as waiters. Respon-
dents' defense is that the three employees were discharged
for various derelictions of duty and behavior. Respon-
dents' waiters as observed at the trial are highly articulate
men of better than average education and of engaging
appearance and manner who earn approximately $400 a
week, mostly from tips, in contrast to the bulk of
Respondents' kitchen help who are meagerly educated,
inarticulate, Spanish-speaking men who earn about $104
per week.
Maxwell's Plum has two dining rooms, one referred to as
the Back Room and the other as the Front Room or Cafe.
The Back Room is the more elaborately decorated and
commodious dining where meals are a la carte with checks
coming to about $10 to $11 per person. The Cafe is less
formal, has smaller tables where the average check is
between $5 and $6 per person. Respondents seek to place
their best and most experienced waiters in the Back Room
where they work in pairs, with one waiter taking the order
and the other seeing that the order is filled in the kitchen
and served when ready. In the Cafe a single waiter
performs both functions.
The three dischargees here involved worked as waiters in
the Back Room. They worked under the direct supervision
of Edmund Collins who held the position of captain of the
Back Room. Miranda and Esposito worked as partners,
with Esposito taking the orders from patrons and Miranda
seeing that the orders were filled and served. Wolf worked
the kitchen-end of a partnership with a partner not
involved in this proceeding.
Miranda and Esposito were discharged on September 23,
1970. Wolf, who was off work on September 23 and 24,
was terminated on September 25, 1970, but the decision by
24 Collins impressed the Trial Examiner at the hearing as being a
completely sincere and honest witness Any reading of the transcript of his
testimony conveys the same impression.
29
management to terminate all three of these waiters was
made at a management meeting held about 3 p.m. on
September 23, 1970. The terminations were by Sylvain
Fareri, assistant general manager, under directions of
owner LeRoy and his general manager, Jacquest Alliman,
who that day left for Europe to attend the funeral of his
father.
Miranda worked for Respondents for about 6 months
prior to his discharge. About a week before his termination
he called at the union offices of Local I to see if the Union
could get him ajob at some other restaurant because of his
dissatisfaction with working conditions at Maxwell's Plum,
one of his complaints being the long hours of work. There
he was persuaded to undertake organizing the dining room
employees at Maxwell's Plum. He began his organizational
efforts immediately among his coworkers. On September
23, 1970, after work about 1 o'clock in the morning, an
organizational meeting of the Plum's waiters was held at
Local l's offices attended by seven or eight waiters,
including Miranda, Esposito and Wolf. The prime mover
in this organizational drive was Miranda.
The record is undisputed that management held a
meeting at LeRoy's order later that same day about 3
o'clock in the afternoon which was attended by LeRoy as
owner of Maxwell's Plum and Alliman and Fareri, as
general and assistant general managers, respectively.
Although denied by Respondents, the fully credited
testimony of Collins24 establishes that he was also present
at the meeting at the request of Faren in his capacity as
captain or immediate supervisor of the waiters in the Back
Room.25
According to Collins' credited testimony, LeRoy opened
the meeting with the assertion that some of the waiters
were trying to start a union. He called upon his managers
to name the union ringleaders. In response to this demand,
Feren gave him the names of Miranda, Esposito, and
Wolf. LeRoy mentioned the names of two other waiters
who might also be involved in starting up a union, but
accepted Collins' word that he didn't think they were
"involved." LeRoy thereupon ordered Fareri "to get nd of
them tonight," to wit, Miranda, Esposito, and Wolf. This
task fell to Faren rather than Alliman because the latter
had received word of the death of his father in Europe and
was flying to France that day to attend the funeral.
The meeting lasted only a short time. Shortly after the
meeting, Miranda, aware that a management meeting had
taken place, asked Collins, "What was going on?" Collins
made no immediate response to the question, but told
Miranda that he would meet him at a nearby bar. There
some 15 minutes later he informed Miranda that manage-
ment had knowledge of his union activities and intimated
that he was in danger of losing his job. When Miranda got
back to the Plum about 4:30 p.m., to start the dinner shift,
Faren called him aside and told him that he was
discharged without giving him any reason for the action.
Miranda pressed Fareri for the reason for his discharge.
Faren's first explanation was that it had been ordered by
Alliman. Miranda argued with Faren for the real reason
25 Although Faren did not expressly deny that Collins was in attendance
at the meeting, his testimony seeks to give the impression that Collins was
not at the meeting That impression is not credited.
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for his termination, calling attention to the fact that he had
worked under him for 6 months and that he deserved to
know the genuine reason for his discharge. Miranda's
credited testimony shows that Fareri finally told him that it
was because he was trying to get a union in at the
restaurant.
A few minutes later Fareri similarly fired Esposito. Like
Miranda, Esposito sought the reason for his discharge, but
his credited testimony shows Fareri declined to give him
any reason at all for his termination.
Wolf, like Miranda and Esposito, had also attended the
union meeting held after working hours about 1:30 in the
morning of Wednesday, September 23, 1970, at Local I's
union offices, but thereafter was off duty until Friday,
September 25 when he reported for work for the noon shift
at I1 a.m. Shortly after he had reported, Fareri took him
aside and told him that under instructions from Alliman he
was discharging him. Not satisfied with this explanation,
Wolf asked why he was being discharged and Fareri told
him it was because of dissatisfaction with his services.
Incredulous, Wolf told Faren that that was hard to believe
because LeRoy had complimented him on his service and
that Alliman had told him only a month or two ago that,
"You're still the best waiter we have." 26 Wolf kept pressing
Fareri for the real reason for his discharge. His credited
testimony shows that Fareri finally told him that he was
being discharged "because of the union" which the Trial
Examiner finds to mean because of his union activities or
sympathies.
Respondents through the testimony of LeRoy, Alliman,
and Brecq offered a variety of reasons for the discharge of
the three waiters on the grounds of dissatisfaction with
their work, attitudes, and behavior. These reasons are not
credited.
Discussion and Conclusions
The record leaves no doubt that Miranda, Esposito, and
Wolf were discriminatorily terminated because of their
known union activities and sympathies. The credited
testimony of Collins, who as a supervisor attended the
management meeting of September 23, 1970, shows that at
that meeting owner LeRoy ordered the termination of
these three waiters identified by Fareri as the ringleaders in
the movement to organize the Plum's waiters.27 The timing
of their discharges on the very same day following the post-
midnight union meeting attended by the three dischargees
is further proof that the three waiters were fired because of
their union activities. Fareri's admission (as established by
Collins' credited testimony) that at least two of the
terminatees, Miranda and Wolf, were discharged "because
of the union" is still further proof that the sole reason for
the termination of all three of the waiters was their union
activities. Finally, the record contains evidence (as shown
26 The Trial Examiner credits Wolf's testimony that he received these
compliments from LeRoy and Alliman.
27 Such direct evidence by a supervisor on decisions made internally by
management to fire designated employees because of their union activities is
most unique in 8(a)(3) proceedings.
28 Although Wolf was discharged on September 25, 1970, for all practical
purposes he was discharged on September 23, 1970, when Miranda and
Esposito were discharged.
29 Par 8 of the complaint also alleges threats by Respondents of "other
in the next section of this Decision) that LeRoy himself
told his waiters at a meeting held with them the day after
the discharges of Miranda , Esposito, and Wolf 28 that these
three employees were terminated because they tried to
organize his waiters.
G. Issues as to Whether Respondents' Dining Room
Employees Were Subjected to Various 8(a)(1)
Violations
The complaint (Cases 2-CA-12166-1 and -2) involving
Respondents' dining room employees alleges three inde-
pendent 8(a)(1) violations by Respondents as follows:
Paragraph 8 of the complaint alleges that the Respondents
through agents LeRoy, Alliman, and Fareri on September
24, 1970, and on subsequent dates warned their (dining
room) employees to refrain from becoming members of
Local I or giving it any assistance or support and
threatened them with discharge for failure to refrain from
such conduct.29 Paragraph 9(a) of the complaint alleges
that the Respondents by LeRoy and Alliman on Septem-
ber 24, 1970, and on subsequent dates offered and
promised to their (dining room) employees life insurance
policies, health benefits, and other benefits and improve-
ments in their working conditions and terms of employ-
ment to induce them to refrain from becoming members of
the Union or from giving the Umon support or assistance.
Paragraph 9(b) of the complaint alleges that Respondents
by LeRoy in November 1970 granted to their (dining
room) employees life insurance benefits to induce them to
refrain from becoming members of the Union or giving it
any assistance or support.
Counsel for General Counsel offered the testimony of
waiters Marcel Specia and the aforementioned Edmund
Collins, the former captain of Respondents' Back Dining
Room, but since late October 1970, a waiter in Respon-
dents' Front Room or Cafe, in support of the above-noted
allegations, except the allegation that asserts that Respon-
dents granted their employees life insurance in November
1970 on which other evidence was adduced.
Specia at the time of the trial herein had been a waiter in
Respondents' Back Dining Room for 7 months. He is a
native of France of French and Italian extraction and
although he had been in this country for 8 years, he
displayed great difficulty in grasping the questions put to
him in English and even greater difficulty in finding words
in English to express his answers to the questions.30 In
addition the Trial Examiner noted that he had severe
emotional difficulties as a witness which made him tongue-
tied, apparently because of apprehensions that his testimo-
ny might cost him his job. This manifested itself, especially
towards the end of his examination, in long delays in
answering questions or in complete silences to questions
put to him, even when they seemed innocuous. Neverthe-
reprisals , including threats to close the restaurant or to reduce the number
of hours and days worked by employees" if the employees did not refrain
from becoming or remaining members of the Union or giving it any
assistance or support . Inasmuch as no evidence was adduced in support of
this allegation , it will be recommended for dismissal for failure of proof.
Similarly, the allegation that Respondents ' agent , Fareri , engaged in the
proscribed conduct alleged in par . 8 of the complaint will be recommended
for dismissal for failure of proof
30 No effort was made to have Specia speak through an interpreter.
MAXWELL'S PLUM 31
less the Trial Examiner is convinced from the demeanor
observation of Specia at the trial and from a careful
reading of his testimony in the transcript that his testimony
is reliable and credible except for an initial answer to a
highly sensitive question which he later reversed as shown
below.
Specia attended a meeting of the Plum's dining room
employees called by LeRoy in the nud-afternoon of
September 24, 1970, following the previous day's discharge
of waiters Miranda, Esposito, and Wolf by Fareri.31 Fareri
was also at this meeting called by LeRoy, but apparently
made no remarks to the assembled employees. General
Manager Alliman was not at the meeting as he had flown
the night before to France because of news of his father's
death there. The meeting lasted about a half hour.
Specia's credited testimony shows that LeRoy forthright-
ly told his dining room employees at the meeting that he
did not want a union at the Plum and made it plain that he
would fire any employee who tried to organize a union at
the restaurant. Initially out of obvious fear for his job,
Specia denied that LeRoy had said anything at the meeting
about having fired three or four dining room employees the
day before because of their union activities, but when
shown his pretrial affidavit and reassured that the law
protected him against reprisals by his employer because of
his testimony, he positively and directly testified that four
employees had been discharged because of their union
activities as appears from the transcript as follows:
MR. BANKS, counsel for General Counsel, after
refreshing the witness' memory from his pretrial
affidavit, asked: Mr. Specia, what did Mr. LeRoy say
was the reason that the four waiters were not working
there any more?
A. He say . . . he don't want nobody organize the
union in this place, that is the reason . . . the guys lost
the job. He32 try to organize the place, the union in the
place.
TRIAL EXAMINER: Is that what Mr. LeRoy said to the
employees at the meeting? . . . Did Mr. Leroy, if I
understand your testimony correctly, tell you and the
other employees that these four men33 were discharged
because of their union activities?
THE WITNESS: Mr. LeRoy, he say I don't want .. .
nobody try to organize the union in my place ... .
TRIAL EXAMINER: You have already said that a half
dozen time. I am asking, did he say that he discharged
these four people because they were engaged in
organizing the company?
THE WITNESS: Yes.
Specia's credited testimony further shows that LeRoy
also told the assembled dining room employees that
Maxwell's Plum was a "nice" place to work because it
employees received "nice" benefits such as Blue Cross
hospitalization and life insurance. These remarks by
LeRoy to the dining room employees are deemed to be
promises of such insurance coverage as the record, as
hereinafter detailed, shows that the great bulk of Respon-
dents' dining room and kitchen employees did not become
the recipients of health and hospital insurance until after
the September 24, 1970, meeting at which LeRoy told the
employees that they were already receiving such benefits.
Linked as this promise of fringe benefits is with LeRoy's
described antipathy to having a union shop and the
warning that he would discharge employees who sought to
organize the restaurant, it is found that LeRoy promised
health and life insurance to his dining room employees if
they refrained from becoming members of the Union or
giving it any assistance or support.
Collins, the aforementioned waiter and former captain of
Respondents' Back Dining Room, testified to another
meeting of waiters called and addressed by General
Manager Alliman, which Collins attended. Collins was
certain as to what Alliman said to the assembled waiters at
the meeting but uncertain about the date of the meeting.
He finally fixed the meeting as having taken place
"probably within a week or so" after the September 23,
1970 (a Wednesday), termination date of Miranda and
Esposito,34 which was also the date that Alliman flew to
France. As Alliman did not return from France until
September 27 and to work until September 29,35 it is found
that the meeting which Collins described in his testimony
took place on September 29, 1970, or within a day or two
thereafter.
Collins' credited testimony shows that Alliman told the
assembled waiters at the meeting that some of their fellow
waiters, whom he did not identify, had been fired and
followed that up with the warning that "if anybody was to
show us any kind of card to sign for the Union, we were
not to sign this card because management would find out
who signed the card-if he [the solicitor] tells you they will
never find out, don't believe it. We can find out. We will
know ...." Asked by counsel for General Counsel if
Alliman said anything else at the meeting , Collins
creditably replied that the "basis" of the meeting was
"about us not signing any [union] cards," but that Alliman
also spoke to the waiters about the advantages of a H.I.P.
health plan which the Respondents had for their employ-
ees. Collins further creditably testified that Alliman had
never before mentioned such health coverage in prior
meetings with Respondents' waiters.
Because of Collins' uncertainty as to the precise date of
the meeting here under discussion , Respondents in their
brief seek to show that the meeting Collins had reference to
was the meeting called by LeRoy on September 24 which
Alliman could not have attended because he was in Europe
and Respondents therefore contend that the testimony
given by Collins as reported above is "spurious and
fabricated." But the record is clear that Collins was not
referring to the meeting called by LeRoy but to an entirely
separate meeting called by Alliman after his return from
France at which he could not remember whether LeRoy
"showed up or not." LeRoy's own testimony shows that
31 The testimony of LeRoy, Faren, and Specia shows that this meeting Wolf was discharged because of his union activities , but he is not here
took place on the day after Miranda and Esposito were terminated Wolfs involved as a discnminatee.
termination came 2 days later pursuant to earlier management decision . 34 Wolf, the third discnminatee, was discharged on September 25, 1970
32 Specia obviously meant the plural of the pronoun "he " 35 According to Alliman 's testimony
33 Apparently a fourth waiter in addition to Miranda , Esposito, and -
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meeting he held with the dining room employees on
September 24 was one of many that management holds
with its employees. As quoted by Respondents in their
brief, LeRoy testified, "There are meetings held at least
every week and sometimes several times a week, either with
large groups of employees or with smaller groups to discuss
individual problems."
Finally it is established by stipulation and the record that
Respondents for the first time granted life, accidental
death, and dismemberment insurance , not only to their
dining room employees, but to all of their employees as of
November 1, 1970, which gave each employee life
insurance coverage in the amount of $7,500.
Conclusions
From the evidentiary findings made above, it is found
and concluded that General Counsel has fully sustained by
credited testimony the allegations of paragraphs 8 and 9(a)
and (b) of the complaint in Cases 2-CA-12166-1 and -2 as
set forth in the opening of this section of the Decision and
that by reason thereof the Respondents are in violation of
Section 8(a)(1) of the Act as alleged in paragraph 10 of the
same complaint.
H. Issue as to Whether Respondents' Kitchen
Employees Were Unlawfully Interrogated by
Respondents' Assistant Manager and Executive Chef
The complaint (Case 2-CA-12207) involving Respon-
dents' kitchen employees alleges under paragraph 10 that
Respondents by their agent, Robert Tanzi, interrogated
some of the restaurant's kitchen employees concerning
their membership in, activities on behalf of, and sympathy
in and for the Union.
In support of the allegation General Counsel relies on
the testimony of the aforementioned kitchen employees,
Santos Bonet, a runner, and Osvaldo Avelino, a dishwash-
er. At the time of the trial herein, Bonet had been in
Respondents' employment for about a year, and Avelino,
for about 9 months.
Bonet, as heretofore shown, signed a union authorization
card for Local 89 at the solicitation of discnminatee
Ferreira on or about September 16 or 17, 1970, at the
premises of the Plum. His credited testimony shows that
the following events occurred thereafter. On or about
October 1, 1970, Ferreira stopped in at the restaurant again
and invited Bonet and several other kitchen employees to
meet , during their lunch hour, Hernandez, a Local 89
organizer, who was standing on the sidewalk some 20 feet
from the restaurant's employees' entrance. This meeting of
the kitchen employees with an outsider (Hernandez) was
observed by one of Respondents' stewards, a position
heretofore determined to be that of a statutory supervisor,
who in turn informed Tanzi, the assistant general manager
of the Plum, of what had taken place. Tanzi, surmising that
the man the kitchen employees were talking to just outside
the employees' entrance to the restaurant was a union
organizer, called a meeting of the restaurant's kitchen
utility employees that same afternoon about 5 p.m. A total
of six employees, including Bonet, all of whom had signed
union authorization cards, attended the meeting. With
Executive Chef Brecq serving as interpreter , Tanzi queried
the employees as to whether they had signed union cards.
Bonet and the other employees in attendance , on Bonet's
advice, answered "No" because they feared they would
lose their jobs if they said, "Yes." Tanzi instructed them,
"Before you sign cards , come and talk to me."
Avelino started his employment as a dishwasher with
Respondents on September 7, 1970. He signed a union
authorization card on or about September 21, 1970 , also at
the solicitation of Ferreira. His credited testimony shows
that on or about October 23, 1970, he attended an evening
meeting of the restaurant's dishwashers called by Chef
Brecq primarily for the purpose of notifying them of a pay
raise and certain fringe benefits (as set forth in the next
section of this Decision ), but that during the course of the
meeting Brecq also interrogated some of the dishwashers,
including Bonet, on whether they had signed union cards.
The following excerpt from Avelino's credited testimony
leaves no doubt that the cards on which Brecq interrogated
the employees were union authorization cards, not medical
information cards as Respondents contend:
Q. (By General Counsel) Did he ask you about the
union?
A. He asked us if we had signed a card. I told him I
didn't know what this was all about.
Respondents seek to have Bonet's above-described
testimony showing that Tanzi on or about October 1, 1970,
about 5 p.m. interrogated him and other coworkers about
whether they had signed union cards discredited on the
ground that he was "an incredible witness" because he
denied that his pretrial affidavit had been read back to him
before he was asked to sign it , because he made conflicting
statements about which one of Respondents' supervisors
was responsible for his promotion from dishwasher to
runner, and because in his testimony he mentioned that
some of the kitchen help went out at noon on or about
October 1, 1970, to meet only Business Agent Hernandez
whereas in his pretrial affidavit he stated that there were
two business agents on the scene to talk to the kitchen
employees. The Trial Examiner regards these peripheral
discrepancies , if they be such , as too insignificant and
inconsequential to affect the over credibility the Trial
Examiner assigns to Bonet 's testimony as related to central
facts based on demeanor evidence and a careful study of
his transcribed testimony. Respondents also rely on the
testimony of Supervisor Robert Willis, a steward, that
Tanzi did not interrogate the involved kitchen employees
on whether they had signed union cards. This testimony of
Willis, even if true, does not negate Bonet 's testimony since
Willis' testimony related to a meeting Tanzi had with
kitchen employees on October 22, 1970, whereas Bonet's
testimony related to a meeting Tanzi had with kitchen
employees on October 1, 1970. In any event the Trial
Examiner does not credit Willis' denial that Tanzi engaged
in the described interrogation of Respondents' kitchen
employees . It is most significant that Respondents did not
call Tanzi as a witness to deny Bonet's testimony that he
(Tanzi) had interrogated kitchen employees on October 1,
1970, about whether they had signed union cards.
Respondents' attack on Avelino's above-described testi-
MAXWELL'S PLUM 33
mony follows a different tack. Respondents offer Brecq's
testimony to show, contrary to Avelino, that he "did not
ask employees if they had signed a card for Local 89," but
instead had only exclusively asked the employees if they
had filled out certain medical informational cards in
connection with company fringe benefits for employees.
This testimony by Brecq is not credited. The above-quoted
and credited testimony by Avelino clearly shows that
Brecq did interrogate his kitchen employees as to whether
they had signed union cards.
Conclusions
Based on the above evidentiary findings, the Trial
Examiner finds and concludes that Respondents on or
about October 1, 1970, by its agent, Tanzi, and on or about
October 23, 1970, by its agent, Brecq, interrogated their
kitchen employees about whether they had signed union
authorization cards for Local 89. The Trial Examiner also
finds, based on the above evidentiary facts and Respon-
dents' manifest antiumon attitude and hostility as reflected
by the entire record, that the described interrogations were
coercive in nature and, accordingly, in violation of Section
8(a)(1) of the Act.
1. Issues as to Whether Respondents Promised and
Granted Their Kitchen Employees Wage Increases
and Fringe Benefits To Induce Them To Refrain
From Union Activities
The complaint involving Respondents' kitchen employ-
ees under paragraphs 14 and 15 thereof also alleges that
Respondents in October and November 1970 offered and
granted wage increases and various fringe insurance
benefits to their kitchen employees to induce them to
refrain from supporting Local 89.
The facts pertaining to Respondents' wage increases for
certain of its kitchen employees and the inauguration of
various insurance benefits for all of Respondents' employ-
ees are for the most part not in dispute, but Respondents'
timing of these beneficial changes and the motivations for
these changes are very much in dispute. Essentially,
Respondents' defense for the pay raises is that they were
granted under company policy to effect wage increases
from time to time as justified by ment and by company
earnings . Basically, Respondents' defense for the granting
of various, employee insurance benefits from and after
October 21, 1970, is that such benefits were planned long
before Local 89 began its organizational drive and were
designed not only for the restaurant's kitchen employees
but also for the Plum's dining room and bar employees.
It was found and determined above that Local 89 made a
demand upon Respondents on October 21, 1970, for
recognition as the exclusive bargaining representative of
their kitchen employees for purposes of collective bargain-
36 There is no dispute between General Counsel and Respondents that
both the day- and night-shift meetings took place on the same day, although
there is a dispute as to the precise date of such meetings The previously
noted and credited testimony of Bonet and Rey show that the day-shift
meeting took place on October 23, 1970 Avelino 's testimony shows that the
night-shift meeting at which the wage increases were announced took place
on the same day that the day shift received the same information
37 Despite Brecq's claim that he was present at the day-shift meeting at
ing. As detailed below the record shows that Respondents
announced and granted certain pay raises and insurance
benefits to their kitchen employees subsequent to the
aforementioned critical date of October 21, 1970.
It is an undisputed fact that Respondents' management
upon orders from owner LeRoy notified the restaurant's
day- and night-shift kitchen employees at separate meet-
ings of each group on an identical day in the latter part of
October 1970 of pay raises of from $2.25 to $2.60 per hour
or $16 per week for dishwashers and from $2.25 to $2.75
per hour or $24 per week for saladmen and a runner. (Joint
Exh. I D and E.) In all some 11 dishwashers received the
$16 raise and 3 other kitchen employees received the $24
raise. Similarly, it is an established fact that the very first
paychecks in which these wage increases were reflected
were received on October 29, 1970. However, the testimony
offered by General Counsel and Respondents is conflicting
as to the precise date in the latter part of October that the
announcements were made of the pay raises . Bonet, the
aforementioned kitchen runner who was in attendance at
the day-shift meeting at which the pay raise announce-
ments were made , testified that meeting took place on
either October 22 or 23, 1970. More precisely, the
testimony of Union Representative Rey shows that the
meeting in question took place on October 23, 1970, as on
that day he received a telephone call from Bonet telling
him that the wage increases had been just announced. Rey
based his recollection of the precise date of the meeting
from his office diary under date of October 23, 1970, on
which he had jotted down the substance of Bonet's
telephone call as of the date of the call. (Charging Party
Local 89's Exh. 19.)
The Trial Examiner credits the joint testimony of Bonet
and Rey, as corroborated by Rey's diary, that the day-shift
meeting at which the wage increases were announced took
place on October 23, 1970. Brecq's testimony that the
meeting in question took place in mid-October is not
credited. Bonet's wage increase was $24 per week.
The aforementioned dishwasher Avelino was present at
the night-shift meeting at which the wage increases were
announced. It is found that this meeting also took place on
October 23, 1970.36 The night-shift meeting was called by
Executive Chef Brecq who appears to have been the sole
spokesman for management present at the meeting, as
Assistant Manager Tanzi appears to have been, at the
earlier day-shift meeting.37 Brecq made the announcement
of the wage increases for the dishwashers . It is undisputed
that after the wage increase announcement Brecq passed
out blank insurance forms for either hospitalization or
medical care or both. During the course of the meeting,
Brecq also mentioned Respondents' plan to provide life
insurance benefits for their employees. The credited
testimony of Avelino shows that Brecq told the assembled
kitchen employees that the various employee benefit
which the wage increases were announced , Bonet's credited testimony
shows that Tani presided over the day-shift meeting and that Brecq was
not present at that meeting Bonet's testimony that Brecq was not at the
day-shift meeting is corroborated by Union Agent Rey's aforementioned
contemporaneous diary note of October 23, 1970 , which notes (based
Bonet 's telephone call of the same day to Rey ), that the Plum 's stewards,
not Brecq announced the pay increases
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insurance plans he was referring to "was better for us than
to accept the Union" (In the preceding section, it was
found that Brecq at the same meeting had coercively
interrogated Avelino and other employees about whether
they had signed union authorization cards for the Union.)
In justification for the granting of the pay raises reflected
for the first time in the paychecks of October 29, 1970, to
the restaurant's I I dishwashers, 2 saladmen, and I runner
(Bonet), owner LeRoy testified that the pay increases were
based on the following considerations: "One, it's based on
trying to get the best people to work at the restaurant
.... As we make greater profit we give raises." LeRoy
testified that the wage increases in question were made on
the basis of increased profits for the fiscal year ending
October 1, 1970, but Respondents did not offer in evidence
their profit-and-loss statement for that fiscal year or any
other to bear out LeRoy's assertion. As proof of company
policy to grant wage increases from time to time, the
Respondents introduced in evidence a document (Resps.
Exh. 42) showing wage increases for various employees
from December 29, 1969, through November 2, 1970.
Although the exhibit shows a group increase of the hourly
scale for the Plum's numerous waiters from $1 to $1.14
which was required under the New York State minimum
wage laws, the document fails to show any similar group
wage increases for kitchen employees prior to the group
wage increases for kitchen employees here under discus-
sion. Such prior wage increases as appear in the exhibit for
kitchen employees appear to be for individuals and not for
groups of employees and for the most part appear to be
promotions from positions above that of dishwashers to
even higher echelons of kitchen help inasmuch as the
recipient employees received wages in excess of $3 per hour
which is more than the 11 dishwashers, 2 saladmen, and I
runner received even after their wage increases. It is also
noted that while the record herein appears to support
LeRoy's testimony that he tried "to get the best people to
work at the restaurant" insofar as that assertion applies to
his chefs and waiters, there is no evidence it also applies to
Respondents' dishwashers who appear fungible.
The history of insurance benefits, hospitalization, medi-
cal, and life, provided by Respondents for their employees,
both before and after Local 89's demand of October 21,
1970, for recognition, is as set forth below.
Respondents on March 25, 1970, entered into a con-
tract38 with Associated Hospital Service of New York,
Inc., wherein the latter company agreed, effective as of April
1, 1970, to furnish Blue Shield hospitalization insurance to
18 out of Respondents' then 100 restaurant employees.
Under the terms of the contract, the remaining 82
uncovered employees, therein described as "Exclusions,"
would become eligible for coverage upon completion of 90
days' employment with Respondents, subject, however, to
the condition that within the first 30 days after the 90-day
period they have filled out and filed with the Respondents
for forwarding to the insurance carrier an information card
(Resps. Exh. 35), which calls for such information as the
name, address, and birth date of the employee, the names
and birth dates of his spouse and children, and the
signature of the employee and date thereof. Failure to file
the card within the indicated 30-day period makes the
employee ineligible for the hospitalization insurance for a
period of up to a year until the annual reopening of the
contract.
The names of the first 18 employees covered as of April
1, 1970, by the Blue Cross hospitalization insurance are set
forth in Respondents' Exhibit 17 and include such
managerial employees as General Manager Alhman,
Assistant Manager Fareri, Executive Chef Brecq, and
Gloria Messer who is owner LeRoy's personal aide. The
exhibit does not show the names of any of the 23 kitchen
employees who signed union authorization cards for Local
89; some of these would not have been eligible for the
hospitalization insurance as they were not in the employ-
ment of Respondents on April 1, 1970; others could have
been in Respondents' employment for a period of 90 days
on April 1, 1970, but the record is silent on this. The exhibit
shows the name of only one kitchen employee, Franz
Kluebenshies, whose hourly rate of pay of $4.16 indicates a
higher paid type of kitchen employee, probably a cook,
then Respondents' dishwashers who received $2.60 after
their raise from $2.25 per hour.39
As late as October 1, 1970, a billing from Associated
Hospital Service shows that the Service was providing Blue
Cross hospital insurance for only 25 of Respondents'
employees who at that time still numbered about 100
employees in all. (Resps. Exh. 18(c).) Of the original 18
insured employees, 10 are still shown as insured on this
October 1, 1970, AHS bill; 8 of the original 18 were
dropped and 15 new named employees were added, whose
numbers included Assistant Manager Robert Tanzi. None
of the 23 kitchen employees who signed union authoriza-
tion cards for Local 89 are shown on the new October 1,
1970, listing of insured employees 40 In the absence of any
proof to the contrary, it is inferred and found that as of
October 21, 1970, when Local 89 made its demand for
recognition, the number of Respondents' employees
provided with Blue Shield hospital insurance was the same
as on October 1, 1970.
Respondents offered testimony, mainly by owner Le-
Roy's general factotum Gloria Messer, purporting to show
that the reason why only 25 out of Respondents' 100
employees were covered with hospital insurance as late as
October 1, 1970, was that Respondents had great difficulty
in getting their largely, illiterate Spanish-speaking kitchen
employees to properly fill out the simple information cards
required by the insurance carrier as a condition precedent
for the coverage, calling as shown above for such simple
information as the date of birth of the insured and his
dependents and the signature of the employee within the
required 30 days after the first 90 days of employment. No
explanation was offered by Respondents for their failure to
also get such cards from their waiters who of necessity
must speak English in order to take orders and must be
38 The contract is in evidence as Resps Exh. 13, but the full terms and 39 The findings of the above paragraph are in part based on a
conditions thereof as set forth above are based on both the contents of the comparison of the names listed in G.C. Exh 17 with those listed on Resps
contract and the testimony of two representatives of Associated Hospital Exhs 42(a), (b), and (c)
Service , to wit, Peter M Wiley, its district sales manager, and Bright 40 The findings of the above paragraph are based on a comparison of the
Langley, Jr., its enrollment representative names listed on G C. Exh 17 with those listed on Resps Exh. 18(c)
MAXWELL'S PLUM 35
able to write out their food orders in English. Of the 100 or
so employees employed by the Respondents at all times
here pertinent, about 56 are waiters, captains, or seaters.41
As of the effective date of April 1, 1970, only 3 of
Respondents' 56 or so waiters, Horsch, Ribblett, and
Frank Hurney, appear to have been covered with Blue
Cross hospital insurance furnished by Respondents. As of
October 1, 1970, only 6 of the Respondents' 56 waiters or
captains were covered by hospital insurance furnished by
Respondents.42
The premium cost of Blue Shield hopsital insurance to
Respondents per employee is the same , regardless of
whether the employee earns $100 or $400 per week.
However, the total cost of Blue Shield insurance is
dependent upon the number of Respondents' employees
covered by such insurance under the insurance plan
adopted by the Respondent effective as of April 1, 1970.
It is established by the testimony of Bright Langley, Jr.,
an enrollment representative of Associated Hospital
Service, that Respondent under the Blue Cross plan they
adopted had control over the total premiums due under the
plan by the simple expedient of not soliciting the required
application forms (i.e., the above-described information
forms that must be filled out and turned into Respondents
for forwarding to the Blue Cross people within 30 days
from the completion of 90 days of employment with
Respondents) from employees they do not desire to have
covered by the plan.
Under the plan, the Respondents paid the entire
premium costs for each employee without contribution
from the employee. The testimony of LeRoy's chief
executive aide, Miss Messer, that Respondents made
genuine but unsuccessful efforts to get the required Blue
Cross information cards from Respondents' restaurant
employees is not credited. Although most of Respondents'
lower echelon kitchen employees who appear to constitute
the majority of the kitchen unit are Spanish-speaking and
English illiterates, they are not stupid. It can hardly be
doubted that if they had been approached and told that
they could have free hospital insurance for only filling out
an information card and were given the minimal assistance
required for this in English by their stewards or Respon-
dents' office personnel, they would have lost no time in
doing so. The record shows that Respondents at most
made a minimal and feeble effort to obtain such cards
from their employees. Only one such effort in documentary
form is of record. In that attempt some 12 to 15
applications sent to Blue Cross were rejected, mostly
because the application forms (i.e., the above-described
information cards the employees had to make out) failed to
41 Resps . Exhs 42(a), (b), and (c) A seater seats the guests at their tables.
42 The above findings are based on a comparison of Resps Exh 18(c)
with Resps. Exhs 42(a), (b), and (c).
43 The record shows that Blue Cross would have honored any and all
information cards received from Respondents' employees provided they
were timely filed even if they had missing data as such data could be
supplied later However, the sine qua non is that the Associated Hospital
Service had to be in possession of such cards within the 30 days following
the first 90 days of the employee's employment with Respondents Without
the filing of the card within that period, there was no hospital insurance
liability by the insurance carrier.
44 The opening sentence of the letter (Charging Party 89's Exh 10)
reads "When our group was formed in April 1970, we were under the
show the employees' beginning date of employment. That
is a data the Employer could have easily and more
accurately supplied and inserted 43 (Resps. Exh. 34 and
related testimony.) No explanation was offered by Respon-
dents as to why they did not secure the Blue Cross
application forms from their waiters.
As shown above the Respondents discriminatorily
discharged three of their waiters, two, Miranda and
Esposito, on September 23, and one, Wolf, on September
25, 1970, and similarly on October 5 and 6 discriminatonly
discharged two, Ferreira and LeBloas, of their kitchen
employees, the former for their union activities in behalf of
Local 1 and the latter for their union activities in behalf of
Local 89. As heretofore noted the chief instigator of the
effort to organize the kitchen unit in behalf of Local 89 was
Ferreira who was fired on October 6. As shown above
Ferreira started his union organizational efforts on
September 17, 1970, and by September 18 he had signed up
10 of the Plum's kitchen employees. From the findings
dealing with the discriminatory discharge of Ferreira, it is
found that the Respondents had knowledge or strong
suspicion of the union activities of Ferreira, and waiters
Miranda, Esposito, and Wolf by September 22, 1970.
On September 22, .1970, Respondents discussed with
Blue Shield representative, the aforementioned Langley, a
substitution of Associated Hospital Service's Blue Cross
"Strict Adherence Agreement," retroactive to April], 1970,
for Respondents' then existing Blue Cross insurance
agreement as described above. By letter dated October 29,
1970, owner LeRoy made application to AHS for its Strict
Adherence Agreement as a replacement for Respondents'
existing agreement,44 retroactive to April 1, 1970. By letter
(G.C. Exh. 18) dated November 13, 1970, AHA agreed to
the substitution, retroactive to April 1, 1970. The letter
acknowledges receipt of a payment from Respondents "of
the full subscription cost" for all of Respondents' employ-
ees who had completed 90 days of employment.
The essential difference between Respondents' original
Blue Cross agreement and the Blue Cross "Strict Adher-
ence Agreement" is that under the original agreement an
employee did not become eligible for the hospital coverage
unless he filed an information card (as heretofore de-
scribed) within 30 days after he had completed his first 90
days of employment with Respondents whereas under the
Strict Adherence Agreement the employee automatically
becomes covered with the Blue Shield hospital insurance
upon completion of his first 90 days of employment with
Respondents. Under the Strict Adherence Agreement,
AHA does not dispense with the requirement for the filing
of the described card by the employee but the employee
impression that our employees would be covered after 90 days of
employment ," i.e, without the requirement that the employee must file an
application within 30 days after completing his first 90 days of employment
with Respondent . The Trial Examiner has been unable to find any oral
testimony in support of this statement . In any event, the Trial Examiner
finds the statement to be self-serving . It is not credited . The record supports
the conclusion here found that Respondents entered into its original Blue
Shield hospital insurance agreement for the purpose of limiting the benefits
thereunder to such employees as it chose to cover in order to keep the total
cost of the premiums down compared with what the insurance would cost if
it were given automatically to all employees upon the attainment of 90 days
of employment with Respondents.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not lose coverage by the failure to file the card. Under
the new plan, the Employer or insurance carrier will see to
it that they get the information from the employee.
Upon the substitution of the "Strict Adherence Agree-
ment" with its retroactive feature, for Respondents'
original Blue Cross agreement, all of the Plum's employees
who had attained 90 days of service for Respondents' on or
after April 1, 1970, became the automatic recipients of
Blue Cross hospital insurance. It should be noted, however,
that the actual insurance benefits for the employees were
the same under both the original Blue Cross agreement and
the Strict Adherence Agreement. Similarly the premium
rates are the same in both the old and new agreements.
However, the total premiums paid by Respondents under
the Strict Adherence Agreement is higher than under the
original contract because the new agreement automatically
covered all employees with 90 days of employment
whereas under the original agreement only a fraction of the
employees who had attained 90 days of service with
Respondents were covered because of the failure to meet
the requirement for the filing of an application for the
coverage within the next 30 days.
As of April 1, 1970, Respondents also began to offer
health (medical care) insurance to their employees who had
attained 90 days of employment,. through the Health
Insurance plan of Greater New York, commonly known
and hereinafter referred to as HIP. As of April 1, 1970,
Respondents' HIP insurance covered only 19 out of their
then approximately 100 employees. The arrangement for
the HIP insurance was very largely oral. The only
documentary evidence of the contract is a data sheet
(Resps. Exh. 14) dated March 19, 1970, as submitted by
HIP to Respondents pursuant to request under letter dated
January 14, 1971 (Resps. Exh. 15.) From the oral testimony
of Gloria Messer, chief executive aide to owner LeRoy, it is
found that the original HIP agreement, like that of
Associated Hospital Service, had an absolute requirement
that employee-applicants had to file an information card
(calling for dates of birth of employee and dependents,
beginning date of employment, etc.), with Respondents for
transmittal to HIP within 30 days after the completion of
the first 90 days of employment with Respondent as a
condition precedent for coverage.45
On or about the same time in November 1970, when
Respondents changed over to AHS's "Strict Adherence
Agreement" plan, retroactive to April 1, 1970, Respon-
dents also reached an agreement with HIP to similarly
grant automatic HIP coverage, retroactive to April 1, 1970,
for all employees who attained 90 days of employment.
Under the new plan, all of Respondents' employees who
had from or after April 1, 1970, 90 days of employment
with Respondents became automatically entitled to HIP
health insurance.
It is again noted that the Respondents granted life
insurance, including accidental death and dismemberment
coverage, to all of their employees as of November 1, 1970,
under which each employee received coverage in the
amount of $7,500. This insurance also required 90 days of
employment with Respondents before an employee be-
came eligible for the life insurance coverage.
All of the above types of insurance, hospital, health, and
life, are furnished free by Respondents to all employees
who have worked the restaurant for 90 days.
Discussion and Conclusions
The above findings of fact as well as the findings in
earlier sections of this Decision leave no room for doubt
that Respondents had knowledge of the union activities of
many of their kitchen employees at the time Respondents
promised and granted them the above-described wage
increases and free hospital, health, and life insurance
benefits. As shown above, Respondents had some knowl-
edge or strong suspicion of the union activities of their
kitchen employees as early as September 22, 1970, as the
result of discriminatee Ferreira's hardly concealed solicita-
tions of union cards at the restaurant from many of
Respondents' kitchen employees. The Respondents ac-
quired positive knowledge of Local 89's efforts to organize
their kitchen unit on October 21, 1970, by reason of the
Local 89's demand as of that date for recognition based on
the possession of union cards from a majority of the
employees in the unit. The above-described wage increases
and fringe insurance benefits were granted by Respondents
to their kitchen employees after Local 89's union 's demand
of October 21, 1970, for recognition. The timing of these
benefits and Respondents' open hostility to having the
Plum organized by any union leaves no doubt that the
benefits were granted in an effort to nullify and block
Local 89's organizational drive.
The Trial Examiner finds and concludes that the
Respondents promised and granted the various benefits
alleged in paragraph 14(a) and (b) and in paragraph 15 of
the complaint in Case 2-CA-12207 for the purpose of
inducing their kitchen employees to refrain from giving
support to Local 89 and to induce them to abandon their
membership and activity on its behalf in violation of
Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondents, set forth in section III,
above, occurring in connection with the operation of
Respondents described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
1. The Respondents are engaged in commerce and the
two Unions here involved are labor organizations, all
within the meaning of the Act.
2. All kitchen employees of Respondents, employed at
their restaurant known as Maxwell's Plum, exclusive of
45 The evidence on this is not as clear cut as in the case of Respondents ' Messer but also from two representatives of AHS . In the case of the HIP
original Blue Cross hospital insurance coverage with AHS for their insurance , there is only the testimony of Miss Messer.
employees With respect to the latter there was testimony not only of Miss
MAXWELL'S PLUM 37
waiters, bartenders, stewards, guards, watchmen, profes-
sional employees and all supervisors as defined in Section
2(11) of the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
3. At all times from and after October 21, 1970, Local
89 has been the exclusive representative, for the purpose of
collective bargaining within the meaning of Section 9(a) of
the Act, of all of the employees in the aforesaid
appropriate unit.
4. By failing and refusing to bargain in good faith with
Local 89 as the exclusive bargaining representative of their
employees in the aforesaid appropriate unit, the Respon-
dents have engaged in and are engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
5. By interfering with, restraining, and coercing their
employees in the exercise of the rights guaranteed in
Section 7 of the Act, the Respondents have engaged in and
are engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
6. By discharging Carlos Miranda and Richard Esposi-
to on September 23, 1970, and Michael Wolf on September
25, 1970, because of their support of Local 1, the
Respondents engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and (7)
of the Act.
7. Similarly, by discharging Marcel LeBloas on Octo-
ber 5, and Jose Ferreira on October 6, 1970, because of
their support of Local 89, the Respondents engaged in
further unfair labor practices within the meaning of the
same sections of the Act.
8. The Respondents are not in violation of the Act by
reason of the conduct alleged in paragraph 16 of the
complaint in Case 2-CA-12207 and such other allegations
in both cases as have not been expressly found to have
been established by the findings herein.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondents engaged in
certain unfair labor practices in violation of Section
8(a)(1), (3), and (5) of the Act, it will be recommended that
Respondents cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the
Act.
Inasmuch as the findings herein show that Respondents
have used virtually every resource at their command to
frustrate, avert, and prevent Local 89 from representing the
employees in the kitchen unit described above by discrimi-
natory discharges, by unlawful interrogations, by threats,
and by promises and grants of benefits to blunt union
interest in Local 89, the Trial Examiner is of the opinion
that a bargaining order is necessary to effectuate the
purposes and policies of the Act in this case. N.LR.B. v.
46 N L R 11 v Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4)
41 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Sec
Gissel Packing Company, 395 U.S. 575. Practically all of
what the Board found and stated in its Supplemental
Decision in U-Tote M of Oklahoma, Inc., 179 NLRB 829, in
justification for ordering a bargaining order in that case is
also applicable to the present case.
Accordingly, based on the finding that the Respondents
have from and after October 21, 1970, refused to bargain
with Local 89 in Case 2-CA-12207 as the duly designated
representative of the employees in an appropriate unit, in
violation of Section 8(5) of the Act, it will be recommended
that the Respondents, upon request, bargain collectively
with Local 89 as the exclusive representative of said
employees and, if an agreement is reached, embody such
understanding in a signed agreement.
It having been found that Respondents discriminatonly
discharged five employees in violation of Section 8(a)(3)
and (1) of the Act, it will be recommended that Respon-
dents be ordered to offer them full reinstatement, with
backpay computed on a quarterly basis, plus interest at 6
percent per annum , as prescribed in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716, from date of discharge to date reinstate-
ment is offered.
Because of the character and scope of the unfair labor
practices herein found, it will be recommended that, in
order to effectuate the policies of the Act, Respondent
shall cease and desist from in any other manner interfering
with, restraining, and coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act 46
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER 47
Respondents, MPC Restaurant Corp., and Hardwicke's
Plum Ltd., doing business as Maxwell's Plum, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
employee for supporting Local I or Local 89, affiliates of
Hotel & Restaurant Employees and Bartenders Interna-
tional Union of America, AFL-CIO, or any other union.
(b) Coercively interrogating any employee about union
support or union activities.
(c) Threatening employees with discharge for union
activities.
(d) Promising and granting pay raises and hospital,
health, and life insurance benefits as inducements to keep
employees from giving their support to unions.
(e) Refusing upon request to recognize and bargain in
good faith with Local 89 as the exclusive collective-
bargaining representative of Respondents' employees in
the appropriate unit described above with respect to rates
of pay, wages, hours of work, and other conditions of
employment.
(f) In any like or related manner interfering with,
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer the following named employees immediate and
full reinstatement to their former jobs or, if their jobs no
longer exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privileges,
and make them whole for their lost earnings in the manner
set forth in the section of the Trial Examiner's Decision
entitled "The Remedy": Michael Wolf, Marcel LeBloas,
Carlos Miranda, Jose Ferreira, and Richard-Esposito.
(b) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) Upon request, bargain collectively with Local 89, as
the exclusive representative of the employees in the unit
described above, with respect to rates of pay, wages, hours
of employment, or other terms and conditions of employ-
ment and, if an understanding is reached, embody it in a
signed agreement.
(d) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all
payroll records , timecards , personnel records and reports,
and all records necessary to analyze the amount of
backpay due under the terms of this recommended Order.
(e) Post at their restaurant known as Maxwell 's Plum in
New York City, New York, copies of the attached notice
marked "Appendix." 48 Copies of the notice , on forms
provided by the Regional Director for Region 2, after
being duly signed by an authorized representative of the
Respondents , shall be posted by the Respondents immedi-
ately upon receipt thereof , and be maintained for 60
consecutive days thereafter , in conspicuous places , includ-
ing all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the Respon-
dents to insure that the notices are not altered , defaced, or
covered by any other material.
(f) Notify the Regional Director for Region 2, in writing,
within 20 days from the receipt of this Order , what steps
Respondents have taken to comply herewith.49
IT IS ALSO ORDERED that the complaints herein be
dismissed insofar as they allege violations of the Act not
specifically found.
48 In the event that the Board 's Order is enforced by a Judgment of a after exceptions have been filed , this provision shall be modified to read
United States Court of Appeals, the words in the notice reading "Posted "Notify the Regional Director for Region 2, in wasting , within 20 days from
Pursuant to a Judgment of the United States Court of Appeals Enforcing an the date of this Order, what steps the Respondents have taken to comply
Order of the National Labor Relations Board." herewith."
49 In the event that this recommended Order is adopted by the Board