Maxwell's Plum

National Labor Relations Board - Board Decisions

May 28, 1981

256 N.L.R.B. 211 (N.L.R.B. 1981)

MAXWELL'S PLUM 211
Le Roy Fantasies, Inc., and Hardwicke's Plum, Inc.,
a Joint Venture, d/b/a Maxwell's Plum and
Amalgamated Service and Allied Industries
Joint Board, Amalgamated Clothing and Textile
Workers Union, AFL-CIO, CLC. Case 2-CA-
16845 and 2-CA-17017
May 28, 1981
DECISION AND ORDER
On November 24, 1980, Administrative Law
Judge Norman Zankel issued the attached Decision
in this proceeding. Thereafter, the Respondent and
the General Counsel filed exceptions and support-
ing briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as
herein modified. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as herein
modified, and hereby orders that the Respondent,
Le Roy Fantasies, Inc., and Hardwicke's Plum,
Inc., a Joint Venture, d/b/a Maxwell's Plum, New
York, New York, its officers, agents, successors,
and assigns, shall take the action set forth in said
recommended Order:
1. Substitute the following for paragraph l(e):
"(e) In any other manner interfering with, re-
straining, or coercing its employees in the exercise
of the rights guaranteed them in Section 7 of the
Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I In sec. C(I) of his Decision, the Administrative Law Judge correctly
stated that Fox called Purtz about I week before November 21, 1979.
However, he incorrectly concluded that this event preceded Olan's Octo-
ber call from Fox and Respondent's October unfair labor practices.
In par. (d) of the analysis section and also in the remedy section of his
Decision, the Administrative Law Judge refers to Supervisor Caldas' so-
licitation of employees to sign authorization cards for a union other than
the Charging Party. Although the record shows that Caldas was present
during such solicitation, it does not show that she did the soliciting.
2 Chairman Fanning would find that Respondent's obligation to bar-
gain with the Union arose at the time of demand.
I In par. I(e) of his recommended Order, the Administrative Law
Judge included a broad cease-and-desist order against Respondent, rely-
ing on Respondent's having been found to have committed unfair labor
practices in 1972, as showing that it has a proclivity to violate the Act.
We do not agree that this past conduct of Respondent is sufficient to
demonstrate that Respondent has a proclivity to violate the Act. Howev-
er, we do believe that the unfair labor practices found in this case are of
such an egregious nature as to demonstrate Respondent's general disre-
gard for employees' fundamental statutory rights, and warrant the broad
remedial language.
256 NLRB No. 36
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT ask you whether you joined a
union or whether you know that others did so.
WE WILL NOT threaten to withhold prom-
ised wage increases or other benefits from you
because you engage in union activities.
WE WILL NOT say anything to you to give
you an impression that your union activities
are under surveillance by us.
WE WILL NOT tell you that you would
regret joining a union.
WE WILL NOT discriminate against you be-
cause you join Amalgamated Service and
Allied Industries Joint Board, Amalgamated
Clothing and Textile Workers Union, AFL-
CIO, CLC, or any other labor organization, or
because you engage in any union activities.
WE WILL NOT shut down our laundry be-
cause you join a labor organization or engage
in union activities.
WE WILL NOT fail or refuse to give you em-
ployment with us because you engage in union
activities.
WE WILL offer immediate and full reinstate-
ment to Maria Acevedo, Gloria Cruz, Gra-
ciella Gomez, Alexandria Holmes, Ana Rodri-
guez, Domingo Rodriguez, and Gladys Rodri-
guez to their former jobs with us or, if those
jobs no longer exist, they will be offered sub-
stantially equivalent jobs; and WE WILL make
each of them whole, with interest, for all
moneys lost as a result of their dismissal from
work on October 19, 1979, and our failure to
MAXWELL'S PLUM 11
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recall them to work on or about December 6,
1979.
WE WILL make whole, with interest, Dolo-
res Aguilo, Maria Ramos, Marina Rodriguez,
Pautino Rodriguez, Esperanso Ronquillo, and
Guarino Rodriguez for all moneys lost as a
result of their dismissal from work on October
19, 1979. These employees have already been
offered reinstatement. WE WILL immediately
recognize and, upon request, bargain with
Amalgamated Service and Allied Industries
Joint Board, Amalgamated Clothing and Tex-
tile Workers Union, AFL-CIO, CLC, as the
exclusive representative of all the employees in
the unit described below with respect to your
wages, hours, and other conditions of your
employment and, if an understanding is
reached, we will put it into a written contract
which we will sign. The appropriate unit is:
All full-time and regular part-time laundry
employees including feeders, receivers, fold-
ers, washers, and packers employed at our
laundry located at 317 East 64th Street,
New York, New York, but excluding
guards, all other employees and supervisors
as defined in the National Labor Relations
Act, as amended.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in your exercise
of any of the rights set forth at the top of this
notice.
LE ROY FANTASIES, INC., AND
HARDWICKE'S PLUM, INC., A JOINT
VENTURE, D/B/A MAXWELL'S PLUM
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge: These
cases were heard before me on June 18 and July 8-10,
1980, at New York, New York.
On January 31, 1980, an Order consolidating cases,
consolidated complaint and notice of hearing was issued
upon the charge in Case 29-CA-16645 which was filed
by the Union on October 25, 1979,1 and upon the charge
in Case 2-CA-17017 which the Union filed on January
21, 1980.
The consolidated complaint alleges the Employer vio-
lated Section 8(a)(1) of the National Labor Relations
Act, as amended (hereinafter referred to as the Act), by
a variety of independent activities including unlawful in-
terrogation, threats of discharge and other reprisals,
threats to withhold promised benefits and creation of im-
pressions that employee union activity was under surveil-
lance.
All dates hereinafter are 1979 unless otherwise stated.
Additionally, it is alleged that the Employer discrimi-
nated against employees in violation of Section 8(a)(3)
and (1) of the Act by curtailing part of its operations and
the attendant discharge of certain employees on or about
October 19 and by failing to rehire or reinstate them
after the Employer resumed its normal operations.
Finally, it is alleged the Employer refused to bargain
in violation of Section 8(a)(5) of the Act by engaging in
a course of conduct to dissipate the Union's majority
status among an appropriate unit of laundry employees,
which activities consisted of the various alleged inde-
pendent 8(a)(l) violations together with the alleged dis-
criminatory curtailment of operations, discharges and re-
fusals to reinstate employees; and by refusing and failing
to recognize the Union as the exclusive collective-bar-
gaining representative of those unit employees. The con-
solidated complaint avers the Employer's conduct pre-
cludes the holding of a fair representation election
among the unit employees.
The Employer filed a timely answer to the consoli-
dated complaint. The answer admitted certain matters
but denied the substantive allegations and that it commit-
ted any unfair labor practices. All parties appeared at the
hearing. Each was represented by counsel and was af-
forded full opportunity to be heard, to introduce and to
meet material evidence, to examine and cross-examine
witnesses,2 to present oral arguments, and to file briefs.3
I have carefully considered the contents of the briefs
filed by counsel for the General Counsel and the Em-
ployer's counsel. No brief was received from the Union's
counsel.
Upon consideration of the entire record and the briefs
and my observation of the witnesses and their demeanor,
I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTION
No issue is raised as to jurisdiction or labor-organiza-
tion status. Based upon the complaint allegations and the
Employer's amended admissions, I find the Employer is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) and that the Union is a labor
organization within the meaning of Section 2(5) of the
Act. 4
II1. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Sequence of Events
The following recitation is a composite of relevant un-
refuted oral testimony, supporting documents, and other
undisputed evidence. Wherever material conflicts exist,
they are resolved. Not every bit of evidence is discussed.
Nonetheless, I have considered all of it together with all
2 All witnesses were sequestered upon the Employer's unopposed
motion.
3 The General Counsel's unopposed motion to correct the official tran-
script is hereby granted.
4 The Board has previously asserted jurisdiction over the instant em-
ployer. See MPC Restaurant Corp. and Hardwicke's Plum Ltd.. d/bla
Maxwell's Plum, 198 NLRB 14 (1972).
MAXWELL'S PLUM 213
arguments of counsel. Omitted matter is considered irrel-
evant or superfluous.
The Employer is a joint venture which operates two
public restaurants in New York City. Only the entity
known as Maxwell's Plum is directly involved herein. Its
location is at 320 East 65th Street. The other restaurant,
situated across the city, is called Tavern-on-the-Green.
The two restaurants utilize the services of a laundry
facility, also operated by the Employer. The laundry op-
erations were conducted, before September 1978, at the
Maxwell's Plum address. In September 1978, the Em-
ployer relocated the laundry, together with its adminis-
trative offices, to 317 East 64th Street. The laundry oc-
cupies part of the basement at that address, and the of-
fices, the ground floor. The basement also houses the
Employer's stockroom. The stockroom is separated from
the laundry by two walls. It is the organizational activi-
ties of the laundry employees, and the Employer's reac-
tion to them, which gave rise to the instant litigation. s
The following individuals comprise the Employer's
relevant managerial hierarchy. Mr. Wills, manager of
Maxwell's Plum; Mr. Roy Fox, back-of-the-house man-
ager (including the laundry); and Hilda Caldas, classified
as laundry supervisory
At relevant times, 13 individuals, excluding Caldas,
regularly were working in the laundry. Alexandria
Holmes, a laundry employee, became employed by the
Employer in October 1978. Caldas interviewed her. Ap-
parently, Holmes became concerned over lack of union
representation of the laundry employees.
Each employee witness who was questioned concern-
ing union representation claimed, without contradiction,
that none saw any union representative, paid no dues,
initiation fees, or assessments to any labor organization,
and none was aware of the existence of a collective-bar-
gaining agreement applicable to laundry employees.
Holmes contacted a Union which she had heard might
be the representative of laundry employees. Thus, she
telephoned Hotel, Restaurant and Bartenders Union,
AFL-CIO. She was told that union only represented the
Employer's bartenders and restaurant employees. 7 In
fact, collective-bargaining agreements in evidence show
local unions, affiliated with the Hotel and Restaurant
union represented separate units of the Employer's kitch-
en and dining room employees. Although the recognition
clause refers to "all of (the Employer's) employees," the
actual units are derived from addenda viewed in the light
of the Board's finding that a separate unit of kitchen em-
ployees is appropriate. (See MPC Restaurant Corp., etc.,
supra.) Those collective-bargaining agreements are ex-
plicit in identifying the classifications of covered employ-
' The stockroom employees are not involved herein Since Aprl 1980,
no employee was assigned there. Supervisors perform the necessary func-
tions. Even when the stockroom employees sporadically assisted the laun-
dry employees before that time, their services are not reflected on the
laundry payroll. The stockroom employees were subject to a chain of su-
pervision different from the laundry employees.
6 The Employer's answer denies Caldas is a statutory supervisor. How-
ever, the Employer's post-hearing brief refers to her as a supervisor sev-
eral times and ultimately concedes her supervisory status, stating "In
effect, Caldas is a minor supervisory employee . Caldas' status will
be further discussed, infra.
I This testimony of Holmes is uncontradicted. No representative of the
Hotel and Restaurant union appeared at the hearing.
ees. Thus, the contracts specify they cover waiters, bus
boys, captains, chefs, cooks, pastry cooks, and assistants.
The contracts contain a union-shop clause. As noted, the
testimony shows the union-security provision had not
been implemented regarding laundry employees during
any relevant time.
Holmes pursued her efforts in seeking union represen-
tation. Sometime in late September, Holmes called the
Charging Party Union. She met with an organizer. She
signed a card on October 11. She was given authoriza-
tion cards. Holmes distributed those cards among the
laundry employees. She solicited their signatures. Those
employees who signed cards returned them to Holmes.
In turn, she delivered them to a union representative. Of
the 13 individuals employed in the laundry, excluding
Caldas, 9 signed authorization cards, dated October II-
13. The authenticity of the signatures is not disputed.
According to Holmes' uncontradicted testimony,
Caldas told her she (Holmes) would become Caldas' as-
sistant. This occurred about 2 weeks before the October
19 closing of the laundry. Thus, the promotion conversa-
tion occurred roughly concurrent with Holmes' initial
union activities. During the conversation, Caldas told
Holmes that Caldas would ask Fox to increase Holmes'
wages from $175 to $225 per week.8
Caldas and Holmes had another conversation approxi-
mately I week later. This discussion approximately coin-
cided with the date the laundry employees signed their
union authorization cards. Caldas told Holmes she
(Caldas) was trying to get a wage increase for all laun-
dry employees.
October 18 was a regular payday for laundry employ-
ees. Caldas9 engaged Holmes and other laundry employ-
ees in conversation. Thus, Caldas asked Holmes whether
she had joined the Union. Holmes said no. Caldas asked
Holmes to tell the other laundry employees they "are
going to regret joining a union." Holmes credibly testi-
fied that Caldas further said "now they won't get a
raise-they won't get nothing."
Caldas asked employee Dolores Aguilo' ° whether
Aguilo had joined the Union. Aguilo said yes. Aguilo
was employed by the Employer on the date she testified
concerning this interrogation. Aguilo is an alleged discri-
minatee. My earlier remarks regarding credibility of em-
ployee witnesses aside, testimony of current employees is
8 Neither the promotion nor wage discussion is alleged as an unfair
labor practice
9 Caldas did not appear as a witness at the hearing. She was still em-
ployed by the Employer on each of the hearing dates. During the June
18 session Caldas was in the New York City area. She was out-of-state,
on vacation, during the July 8-10 hearing dates. I was impressed with the
demeanor and sincerity of each employee witness who testified to matters
involving Caldas. Each was forthright and candid. The testimony of each
is inherently consistent and mutually corroborative. Minor inconsistencies
are attributed to their difficulty with the English language. Most are
Spanish-speaking. Their testimony was presented through the aid of a
translator Accordingly, each such witness is credited. I adopt their com-
posite version of the facts. Moreover, I shall find Caldas is a statutory
supervisor. Thus, she was in the Employer's control. Her failure to
appear permits me to infer her testimony would have been adverse to the
Employer had she testified. See Interstate Circuit, Inc.. et al. v. United
Stares, 306 U.S. 208 (1939); Monahan Ford Corp, 173 NLRB 204; 2 Wig-
more, On Evidence 286(a)
'o Also known as lda Marquez.
MAXWELLS P UM 13
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entitled to considerable weight because it is not likely to
be false. Such testimony is adverse to an employee's pe-
cuniary interests. Shop-Rite Supermarket, Inc., 231 NLRB
500 (1977); Georgia Rug Mill, 131 NLRB 1304, 1305
(1961), modified on other grounds 308 F.2d 89 (5th Cir.).
Moreover, Aguilo allegedly was discriminatorily termi-
nated on October 19 together with the other laundry em-
ployees. She was reemployed during the week ending
March 2, 1980, under the name Marquez. There is evi-
dence to show the Employer did not recognize Aguilo
(Marquez) as a former employee and suggests something
sinister in her name change. In this context the precept
that a current employee's testimony should be accorded
persuasive weight is especially true. In this context,
Aguilo (Marquez) has even more reason to be apprehen-
sive concerning her testimony if it were false.
The next day, October 19, Caldas asked Holmes
whether Holmes knew the laundry employees had joined
a union. Further, Caldas said, "You are all going to
regret pining the union-Fox will talk to you."
Later, on October 19, Fox appeared at the laundry.
The employees were assembled at Fox's request. He ad-
dressed them. Fox said the laundry would close due to
mechanical problems. He said the employees' services
were needed no longer.
None of the regular laundry work was performed be-
tween October 20 and the week ending December 9.
During that period, the Employer contracted-out its
laundry and linen services to organizations unaffiliated
with the Employer. However, the laundry was not en-
tirely shut down. Limited operations continued. Thus,
Caldas worked daily throughout the period. Two restau-
rant employees were transferred to the laundry. They
worked with Caldas. The three of them washed and fin-
ished uniforms. (During full-scale operations, the laundry
employees washed and prepared the uniforms, plus nap-
kins, table cloths, and other linens.)
During the period of curtailed laundry operations, the
Employer undertook certain repair, remodeling and re-
furbishing of the laundry.
In early December, the normal laundry operations
were resumed. Fox and Caldas reviewed the payroll re-
cords. They determined which of the former laundry
employees should be recalled. According to Fox, those
decisions were based upon the demonstrated attitude,
productivity, seniority, attendance records, and interfa-
mily relationships of the former employees. The record
reflects family relationship previously had not been a cri-
terion for employment in the laundry. Some employee
witnesses credibly testified they obtained their jobs
through references of family members already employed
in the laundry.
The review process resulted in the immediate recall of
only three of the nine cardsigners. The parties' post-hear-
ing briefs do not reflect what the Employer's records
show regarding which employees had been recalled.
Thus, the General Counsel's brief requests offers of rein-
statement be made to G. Cruz, A. Holmes, and D. Ro-
driguez. The Employer's brief indicates A. Rodriguez
had been recalled. Both briefs conflict with what is con-
' The specific work done will be identified in sec. Ill,C,(1), infra.
tained in the Employer's records (G.C. Exh. 28). Thus,
the Employer's payroll records beginning with the week
ending October 21 and ending with the week ending
July 6, 1980, for the laundry indicates that seven employ-
ees on the October 21 payroll had not been reemployed
by July 6, 1980. Those employees are: M. Acevedo; G.
Cruz; G. Gomez; A. Holmes; A. Rodriguez;' 2 D. Rodri-
guez; and G. Rodriguez. My findings shall be based upon
the Employer's records rather than assertions in the
briefs. To complete the needed employee complement
the Employer hired 14 new employees, as reflected in its
payroll records for the week ending December 9.
One of the former employees recalled is Marina
Ramos. She had been absent from work due to illness
during the week of the October 19 closure. Ramos credi-
bly testified that, after her recall, Caldas told her the
"main reason" for closing the laundry was that the em-
ployees had signed the union cards.
B. Interference, Restraint, and Coercion
The complaint, paragraphs 8(a)-(d), alleges the Em-
ployer, by Caldas, engaged in a variety of conduct viola-
tive of Section 8(a)(l) of the Act. The Employer denied
those allegations and that Caldas is its supervisor or
agent. As noted, Caldas did not testify at the hearing.
Nonetheless, the following description of evidence re-
flects her status was fully litigated. I shall proceed to de-
termine her status though I have alluded to virtual con-
cessions, which appear in the Employer's post-hearing
brief, that Caldas is a supervisor. In other circumstances,
counsel's admissions effectively bind clients. Herein, the
variation between what is contained in the Employer's
answer and its brief suggests the need I clarify the super-
visory issue to remove all ambiguity.
I. Caldas' status
Caldas, the only salaried individual working in the
laundry, had extensive experience in managerial positions
at other employers. Thus, between 1944 and 1965 she
was laundry manager at the Savoy Plaza Hotel, New
York City; from 1965-67 she was assistant to the execu-
tive housekeeper for the Essex House Hotel, New York,
where she was directly responsible for linen control and
distribution; and from July 1967 to January 1978 she was
director of laundry and linen services at Isabella Home
Geriatric Center, New York City. Caldas is paid $400
per week by the instant Employer. All others working in
the laundry are paid amounts at, or near, the minimum
hourly wage.
Caldas spends her full working time in the laundry.
She reports directly to Fox who conceded he spends an
average of only 5-6 hours per week in the laundry. Fox's
visits to the laundry largely occurred during hours when
the employees are not present. Fox is not fluent in Span-
ish, whereas Caldas is bilingual. Most laundry employees
are Spanish-speaking.
12 The records list the name "Ana Cerdas" on the payroll after oper-
ations resumed. I note the first-name similanty to one of the Rodriguez
family. If Ana Cerdas and Ana Rodriguez are one person, then the Em-
ployer's assertion that "A. Rodriguez" had been recalled is correct and,
actually, six employees on the October 21 payroll had not been recalled.
MAXWELL'S PLUM 215
Maria Acevedo, Graceilla Gomez, and Holmes credi-
bly testified Caldas told them she (Caldas) was their su-
pervisor. Other employee witnesses testified Caldas inter-
viewed and hired them. Fox admitted Caldas conducts
preemployment interviews but claimed Caldas has no au-
thority to hire without prior approval from him. The
evidence shows Fox relies on Caldas' hiring recommen-
dations. No evidence was adduced to show Fox ever
withheld such approval.
Some of the employee witnesses testified Caldas told
them they were hired during their interviews, and with-
out Caldas having any intervening conversation with
anyone else.
Fox referred to Caldas as a working foreman "respon-
sible for seeing the employees did their assigned work"
and for keeping attendance and other records. The total-
ity of evidence derived from the credible employee wit-
nesses shows Caldas approved employees' hours on time-
cards, assigned overtime work, granted requests for time
off, received calls from employees reporting their ab-
sence, gave permission to use the Employer's telephone,
reprimanded employees for tardiness and excessive talk-
ing, independently handled work-related problems and
grievances, and instructed employees as to the proper
performance of their jobs. 3 Most of Caldas' workday
was consumed in these functions. She performed laundry
production work for approximately only 1 hour each
day. In addition to the above, I have already noted that
Caldas had been consulted by Fox regarding recall of
employees in December.
Fox is available to Caldas by telephone. He sought to
create an impression that Caldas is a mere conduit
through which he effectively supervises the laundry. Fox
claimed he is in "constant" telephone contact with
Caldas. I find such a situation exaggerated. Indeed, it is
virtually impossible. Fox claimed he manages and is re-
sponsible for the operation of the bar, the dish washers,
porters, house cleaners, stewards, and laundry and main-
tenance. Additionally, he is the food and beverage con-
troller and manages the purchasing department. Fox's
regular duties also require him to have frequent contact
with vendors, independent service companies, and the
Employer's warehouse, purchasing and accounting de-
partment. Based upon all these activities, it is reasonable
to presume that Fox utilizes his visits to the laundry
when the employees are not present to confer with
Caldas, give her general directions and receive her re-
ports. No effort was made to have Fox define the fre-
quency of his asserted "constant" telephone contact with
Caldas. Based upon Fox's absence from the laundry,
Caldas' perpetual presence, and Fox's other duties, I con-
clude the record establishes Caldas effectively manages
the day-to-day laundry operations and independently di-
rects the laundry employees in their work and problems.
To conclude otherwise is unrealistic and illogical. A con-
trary finding would subject the laundry to operating
without on-the-spot supervision. This factor is appropri-
ately considered in my determination of the instant su-
1s The testimony concerning many of these functions is corroborated
by documentary evidence.
pervisory issue. See National Association for the Advance-
ment of Colored People, 241 NLRB 430, 435 (1979).
Various criteria exist by which the Board determines
supervisory status. It is not necessary that an individual
possess all the indicia identified in Section 2(11) of the
Act. The statute is disjunctive. Possession of any indica-
tion of supervisory authority makes one a supervisor.
N.L.R.B. v. Metropolitan Life Insurance Company, 405
F.2d 1169 (2d Cir. 1968); Great Central Insurance Co.,
176 NLRB 474, 475 (1969).
That Fox referred to Caldas as a working foreman is
not dispositive. Titles do not resolve the issue. Golden
West Broadcasters-KTLA, 215 NLRB 760, 762, fn. 4
(1974). Moreover, Fox's description is contradicted by
the Employer's records. Those records in evidence iden-
tify Caldas' job description as "laundry supervisor."
At the very least, I conclude the record demonstrates
that Caldas asserts responsible direction over the laundry
employees. Admittedly, Caldas receives generalized
instructions from Fox. Fox, however, is not present in
the laundry. It is Caldas who takes all necessary actions
to see that the required work is done. In this connection,
the record shows Caldas takes whatever action is neces-
sary, including moving employees from one job to an-
other. Viewed in the light of Fox's absence and the ten-
uous nature of his assertion he is in "constant" contact
with Caldas, it is reasonable to presume Caldas effectu-
ates those tasks by using independent judgment. Such re-
sponsible direction supports a conclusion Caldas is a su-
pervisor. Custom Bronze & Aluminum Corp., 197 NLRB
397 (1972).
Inasmuch as I have credited the testimony which indi-
cates Caldas hired some employees without consulting
anyone else, I also find the record reveals Caldas pos-
sesses authority falling within the explicit statutory defi-
nition of a supervisor. In this connection, it is also clear
Caldas effectively has recommended personnel actions to
Fox affecting laundry employees.
Based upon all the foregoing, and the other ample in-
dicia of supervisory authority contained in the record, I
conclude Caldas is a supervisor within the meaning of
Section 2(11) of the Act.
Even if it were concluded that Caldas was not a super-
visor and her activities essentially are simple, repetitive
and routine (e.g., The Singer Company, 170 NLRB 1393
(1968)), I conclude Caldas is, at least, an agent of the
Employer. Undeniably, Caldas was vested with ostensi-
ble authority to effect personnel actions such as hiring
and reprimands. Caldas held herself out as a managerial
official and she clearly was perceived as such. Even at
the hearing, the Employer did not seek to repudiate
Caldas' general authority. As an agent, Caldas' actions
bind the Employer. J. P. Stevens and Company, Inc., 243
NLRB 996 (1979).
2. Concluding findings
A fair evaluation of all the credited facts appearing
above, considered in the light of my finding that Caldas
is a supervisor, inescapably leads to the conclusion that
the Employer violated Section 8(a)(1) of the Act by the
following acts and conduct:
MAXWELLS PLUM
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Caldas unlawfully interrogated Holmes and Aguilo
on October 18 as to whether they had joined the Union.
(b) Caldas unlawfully threatened economic reprisal on
October 18 when she told Holmes that the employees
will not get a raise in the context of announcing to
Holmes that the employees would regret joining a union.
(c) Caldas, on October 18, unlawfully threatened to
withhold the anticipated wage increase from Holmes
when Caldas remarked the employees would not get a
raise and would get nothing.
(d) Caldas, on October 19, unlawfully interrogated
Holmes by asking her whether she knew that the em-
ployees had joined a union.
(e) Caldas, on October 19, unlawfully threatened em-
ployees by telling Holmes that they would regret joining
the Union.
(f) Caldas, on October 19, unlawfully created an im-
pression that the union activities of the employees were
under surveillance when she asked Holmes if Holmes
knew the employees joined the Union. This violation ap-
pears by implication. Literally, Caldas did not say that
she or any other managerial official actually engaged in
physical surveillance. However, Caldas' words clearly
suggest such surveillance. Those words have the tend-
ency to impart an impression that the speaker possesses
positive knowledge of the subject matter of the conver-
sation.
Assessment of activity alleged to violate Section
8(a)(1) is to be predicated upon its reasonable tendency
to have a proscribed effect. Hanes Hosiery, Inc., 219
NLRB 338 (1975); Impact Die Casting Corporation, 199
NLRB 268, 271 (1972). An employee's reaction or per-
ception of the alleged illegality is irrelevant. El Rancho
Market, 235 NLRB 468, 471 (1978). Upon all the forego-
ing, I conclude that the record contains a preponderance
of the evidence to find the Employer engaged in each of
the violations alleged in paragraph 8 of the complaint.
C. Discrimination
1. Curtailed operations, the discharges, and failure
to recall
The General Counsel contends the closing of the laun-
dry on October 19, the subsequent curtailment of oper-
ations, and the failure to recall all the former employees
was discriminatory in violation of Section 8(a)(3) and (1)
of the Act. The Employer asserts the closing was part of
a preconceived need to rectify machine and heating
problems. Moreover, the Employer disclaims knowledge
of the union activities prior to the October 19 closing.
The laundry payroll, week ending October 21, con-
tains the names of the following 13 employees: M. Ace-
vedo; D. Aguilo; G. Cruz; G. Gomez; A. Holmes; M.
Ramos; A. Rodriguez; D. Rodriguez; Gladys Rodriguez;
Guarino Rodriguez; M. Rodriguez; P. Rodriguez; and E.
Ronquillo.
Of these, the following employees signed union au-
thorization cards on the dates indicated: M. Acevedo-
October 13; D. Aguilo-October 12; G. Gomez-Octo-
ber 12; A. Holmes-October 11; M. Ramos-October 12;
Ana Rodriguez-October 12; D. Rodriguez-October
12; Gladys Rodriguez-October 12; and M. Rodriguez-
October 12.
It is admitted that all 13 employees listed above were
told their services were no longer needed by the Em-
ployer on October 19.
The terminations occurred (a) within I week after the
last authorization card had been signed, (b) only I day
after Caldas unlawfully interrogated employees and
threatened them with reprisals, (c) on the same day
Caldas repeated her unlawful interrogation, created an
impression of surveillance and repeated the threat of re-
prisals, and (d) on a day which was not the customary
end of a payroll period. Additionally, the Employer con-
cedes the actual decision to close (or curtail laundry ac-
tivities) was made on October 19, while insisting consid-
erable preliminary ground work had been laid long
before that date. As noted, the curtailed operations began
on October 20 and existed until December 6.
As previously noted, when the laundry returned to full
operation, only six (or seven) of the former employees
had been recalled. Prominent among those unrecalled
was Holmes, the initiator of the union activity and Ace-
vedo who, at the hearing, evinced strong union leanings.
Also, as previously observed, the remaining laundry staff
in December consisted of 14 people who had not before
worked for the instant Employer.
The record, indeed, does reflect the following in sup-
port of the Employer's defense. Thus, Fox extensively
testified to the existence of a series of mechanical prob-
lems in the laundry. 14
Immediately after its relocation in September 1978, the
laundry was frought with difficulties. Some examples
follow. The exhaust system was inadequate in October
1978. The motor was replaced and new intake fans in-
stalled.
Next, two washers taken from the previous locations
broke down throughout 1979. This was attributed to im-
proper installation at the laundry's new quarters. The
washers vibrated excessively. Those washers were re-
paired several times. Ultimately, spare parts became un-
available. Two replacement washers were ordered. Fox
did not indicate the date the replacement machines were
ordered.
On relocation, two new washers were installed.
Almost immediately, the inlet and drain valves malfunc-
tioned and brake shoes clogged. Those machines were
subjected to recurring maintenance calls through 1979.
Also, a new ironer and washing machine were installed
in September 1978. Its relays improperly functioned. At-
tempts to correct the problem, through 1979, failed.
It is noteworthy that the record reflects the laundry
had not been closed during the above-enumerated re-
pairs, except for 2 days in January, when the ironer was
installed.
14 I credit Fox's testimony regarding the laundry's work status. To the
extent that this action is contrary to my other findings by which Fox is
discredited, directly or indirectly, such division of credibility resolution is
appropriate A trier of fact is not required to believe the entirety of a
witness' testimony. Maximum Precision Metal Products. Inc., Renault
Stamping Ltd., 236 NLRB 1417 (1978).
MAXWELL'S PLUM 217
The record is replete with other examples of machin-
ery deficiencies. Each need not be recounted. It suffices
that I find the myriad of problems actually existed. I also
find several unresolved problems had accumulated
during 1979. According to Fox, things reached a critical
point in September.
As early as September 1, Fox and Willis discussed the
possibility of closing the laundry. Thereafter, Fox made
initial inquiry of third-party contractors which might
provide "outside" laundry service to the instant Employ-
er.
Stanley Olan, president of Central Laundry Service,
credibly testified Fox made such inquiry of him on an
unspecified date in the fall. The totality of Olan's testi-
mony indicates Fox's call was made on October 18 or 19.
Thus, Olan said Fox called twice. The first call consisted
of a general inquiry concerning Central Laundry's avail-
ability to provide laundry service to the Employer.
During the second call, Fox actually arranged for Olan's
organization to assume the Employer's laundry work on
the day of the second call or on the next day. Central
Laundry began to service the Employer on October 20.
Thus, I conclude Fox's first call to Olan coincided with
either or both days Caldas engaged in the unlawful
8(a)(l) activity.
George Purtz, general manager of Consolidated Laun-
dries, also testified to the Employer's efforts to obtain
outside laundry service. Purtz was contacted earlier than
Olan. Thus, Purtz testified Fox called him about 1 week
before November 21. This was before the commission of
the unlawful 8(a)(l) conduct. Nonetheless, I find the call
to Purtz coincided with the dates (October 11-13) on
which the union authorization cards were signed by
Holmes and the other laundry employees.
Other evidence is relevant to the issuance of curtail-
ment of operations. The Employer had to insure itself of
a continuing linen supply. On October 19, Fox contacted
Caldas to determine the inventory of linens. Caldas as-
sured Fox a sufficient supply of linen existed to carry the
restaurant through the forthcoming weekend.' 5
As noted, Central began its work on October 20. The
Employer's arrangement with Central continued about 4
weeks. During this time problems with soiled linen, late
deliveries, and shortages were encountered. The Em-
ployer replaced Central with two other contractors. No
problems occurred. However, Fox testified the overall
cost of using contractors was excessively expensive to
the Employer. He also acknowledged the Employer
knew the expense would be high well in advance of en-
gaging the outside contractors' services.
During the curtailment of laundry operations, the fol-
lowing corrective work was done. On October 26, Rig-
gers worked in the laundry to prepare it for new dryer
installation. The Riggers worked 4 days. The washers
were serviced. Such servicing began before October 19
and continued on various days until approximately No-
1t The General Counsel claims Fox provided self-contradictory testi-
mony regarding the Employer's linen needs and inventory. It is also
claimed the Employer's records are contrary to Caldas' alleged report
sufficient linens were available for the weekend. I find it unnecessary to
resolve these apparent conflicts. In view of the other elements on which
I rely in my analysis, infra, these particular conflicts are superfluous
vember 5. During the first week of November, 3 days
were used to paint the laundry floor. Three new dryers
were delivered on November 21. Four days were used to
install them. Finally, installation of the gas heaters took
3-4 unspecified days.
2. Analysis
Resolution of the discrimination issue is guided by the
following legal principles. The General Counsel must
prove certain elements to establish a prima facie case of
discrimination. Those elements are (I) that the affected
employees engaged in activity protected by the Act, (2)
the employer had knowledge of that activity, (3) the ad-
verse personnel action imposed upon the alleged discri-
minatees was motivated by union animus, and (4) that
the discipline had the effect of encouraging or discourag-
ing membership in a labor organization. The General
Counsel has the burden of proving his case by a prepon-
derance of the evidence. Gonic Manufacturing Company,
Division, of Hampshire Woolen Company, 141 NLRB 201,
209 (1963).
Section 8(a)(l) violations support findings of unlawful
motivation. I have found the Employer violated Section
8(a)(1) through Caldas' various conduct violative of Sec-
tion 8(a)(l). Assuming, however, I am in error in those
findings, 8(a)(1) violations are not necessarily a require-
ment of a 8(a)(3) finding. "Actual motive, state of mind,
being the question, it is seldom that direct evidence will
be available that is not also self-serving. In such case . ..
the trier of fact may infer motive from the total circum-
stances proved . . . . If he finds that the stated motive
for a discharge is false, he certainly can infer that there is
another motive. More than that, he can infer that the
motive is one that the employer desires to conceal-at
least where . . . the surrounding facts tend to reinforce
that inference." Shattuck Denn Mining Corporation (Iron
King Branch) v. N.L.R.B., 362 F.2d 466, 470 (9th Cir.
1966). The Shattuck Denn principle was quoted with ap-
proval by the Board in Best Products Company, Inc., 236
NLRB 1024, 1025 (1978).
Support for a finding of unlawful motivation "is aug-
mented [when] the explanation of the [employer's con-
duct] offered by the respondent [does] not stand up
under scrutiny." N.L.R.B. v. Bird Machine Company, 161
F.2d 589, 592 (Ist Cir. 1947).
The issues of discrimination before me present the
classic "pretext" case. The Board's recent decision in
Wright Line, a Division of Wright Line, Inc., 251 NLRB
1083, 1084 (1980), left the concepts of pretextual determi-
nation undisturbed. Thus, in Wright Line, the Board ob-
served, "examination of the evidence may reveal ...
that the asserted justification (for alleged discrimination)
is a sham in that the purported . . . circumstance ad-
vanced by the employer did not exist, or was not, in fact,
relied upon. When this occurs, the reason advanced by
the employer may be termed pretextual." Thus, the
Board distinguished so-called dual motive situations from
those involving pretext.
As to the Employer's knowledge of the instant union
activities, there is both direct and circumstantial evidence
which supports the General Counsel's prima facie case.
MAXWELL'S PLUM 17
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Caldas learned that employees had signed authorization
cards when Aguilo told Caldas, on October 18, that she
had signed a card. Next, it is reasonable to infer, as I do,
that Caldas was aware of the union activity on or before
October 18. No explanation was provided for Caldas to
have engaged in her unlawful interrogation of the em-
ployees on October 18 and 19. That interrogation, cou-
pled with the nature and extent of her threats of repri-
sals, are strong indicators of her prior knowledge of
union activity. Caldas explicitly warned at least Holmes
she would regret having joined the Union.
Moreover, the inference of employer knowledge is
bolstered by the size of the unit. There were only 13 em-
ployees working in the laundry. Caldas was the sole su-
pervisor present with them. The cards were signed I
week before Caldas' 8(a)(1) conduct. The laundry oper-
ations were confined to one room. The size of the unit
and operations give rise to the application of the so-
called small plant doctrine from which it can be inferred
that an employer has gained knowledge of its employees'
union activities. Syracuse Dy-Dee Diaper Service, 251
NLRB 963 (1980), and cases cited therein.
There is ample evidence of the Employer's unlawful
motivation. First, such motivation is virtually admitted.
Thus, after Marina Ramos was recalled, Caldas told her
that the Union was the cause of the curtailment of oper-
ations. Expressions of attitude toward unions made after
the alleged discrimination are appropriately considered
as evidence of animus. Jeffrey P. Jenks d/b/a Jenks Cart-
age Company, 219 NLRB 368, 369 (1975).
Further, Caldas made other statements which reflect
the Employer's union hostility. Thus, on October 18,
Caldas told Holmes the employees would not receive
their wage increase. On October 19, Caldas told Holmes
that the employees would regret joining the union. These
remarks clearly prove the element of unlawful motiva-
tion.
There is, in addition, background evidence of unlawful
motivation. I have taken official notice of the prior
Board decision involving the instant Employer. (See fn.
4, supra.) Such official notice is appropriate. Delchamps.
Inc., 234 NLRB 262 (1978); Plant City Welding and Tank
Company, 123 NLRB 1146, 1150 (1959). In that earlier
case, the Employer was found, inter alia, to have en-
gaged in unlawful interrogation and issuing threats of
discharge. Accordingly, I have accorded the earlier find-
ings some, but not dispositive, weight. Metlox Manufac-
turing Company, 225 NLRB 1317, 1325 (1976); Tama
Meat Packing Corp., 230 NLRB 116 (1977).
Inasmuch as the dismissal of the laundry employees on
October 19 clearly is related to their union activities, it is
apparent that the action taken against the laundry em-
ployees could not help but discourage them from con-
tinuing in their organizational endeavors.
I have found the business causes asserted by the Em-
ployer for its curtailment of operations and dismissal of
the laundry employees actually were present. However,
a fair assessment of all the record evidence persuades me
the Employer grasped upon those causes as a pretext to
disguise its true motivation.
The record as a whole contains convincing evidence
that the Employer's defense simply does not withstand
scrutiny. In short, I conclude the mechanical and other
deficiencies might well have warranted a temporary
shutdown. Nonetheless, I conclude the shutdown was ac-
celerated because of the advent of union activity.
In addition to the factors, discussed above, regarding
knowledge, motivation and effect, the following elements
vitiate the Employer's defense:
(a) Only three of the nine cardsigners were recalled
when operations resumed in December. Among those
not recalled was Holmes, the initiator of union activity
and principal union solicitor. Also, vigorous union pro-
ponent Acevedo was not recalled. Instead, 14 new em-
ployees were hired. In other circumstances, these events
might be pure coincidence. They would give rise only to
suspicion. However, the Employer's demonstrated union
hostility, unlawful interrogation, and threats and creation
of an impression of unlawful surveillance make the fail-
ure to recall two-thirds of the cardsigners significant.
This failure reflects a persistent program by which the
Employer decimated the Union's strength.
(b) The Employer deviated from its previous employ-
ment policies upon resumption of laundry operations in
December. As noted, family relationships was a factor
considered by Fox and Caldas in determining which of
the employees should be recalled. The record shows the
precurtailment employee complement consisted of sever-
al employees related to one another. Many of them re-
sided at the same address, but not necessarily within a
single apartment. Many of those employees were hired
by Caldas through referral to her by family members al-
ready employed in the laundry.
There is no evidence that the Employer considered
family relationships a negative employment factor before
its decision to resume its laundry operations in Decem-
ber. In this context, I conclude the introduction of such a
factor for recall purposes reasonably may be ascribed to
the employees' union activity.
(c) Experienced employees were discarded when the
laundry operations resumed in December. As noted, 14
new employees were hired when operations resumed. As
discussed in subparagraph (b) above, I cannot accept the
Employer's explanation for its failure to recall members
of the same family. Thus, the Employer's contention that
it was justified in ignoring the experience of its precur-
tailment employees is without substance.
(d) The Employer evinced animus toward adherents of
the Union. Evidence, not heretofore described, reflects
that employees were asked by Caldas to sign authoriza-
tion cards for the bartenders union upon their return to
work in and after December. This was an apparent effort
by the Employer to enhance its claim, discussed infra,
that the laundry employees were represented by a labor
organization other than the Charging Party and that a
contract bar existed to the instant refusal-to-bargain alle-
gations. Caldas' effort, in this regard, reveals such digres-
sion from its required position of neutrality as reflects ad-
versely upon its motivation.
The Employer did not prove its claim that the Octo-
ber 19 shutdown was planned to coincide with its cus-
tomary business slowdown. Fox asserted this to be the
case. However, there is contradictory evidence. Thus,
MAXWELL'S PLUM 219
Purtz credibly testified that restaurant business in New
York City normally increases around Thanksgiving.
Nonetheless, the laundry's operations were curtailed pre-
cisely at this time. Accordingly, I find this obvious in-
consistency tends to negate the Employer's assertions.
(e) The decision to subcontract the laundry work is
contrary to sound business methods. Fox candidly ac-
knowledged that contracting-out the laundry services in-
creased the Employer's costs. He admitted that the Em-
ployer knew its costs would be increased long before the
purported October 19 decision to curtail its laundry ac-
tivities. Moreover, Fox revealed that subcontracting in-
variably resulted in diminished quality and shortages.
I shall not presume to intrude upon the Employer's
business judgment. The cost and quality factors, in any
event, cause only suspicions regarding the Employer's
motives. Nevertheless, these factors are an element of
motivation which I may properly consider in the context
of the record as a whole. In the particular circumstances
herein, I conclude the Employer's precurtailment knowl-
edge of the cost and quality factors is some, but not con-
clusive, evidence of the Employer's unlawful motivation.
(f) The timing of the decision to curtail laundry activi-
ties gives rise to an inference it was discriminatorily mo-
tivated. The scenario of events clearly shows the actual
date selected for closure had not been determined until
after the laundry employees signed their union authoriza-
tion cards. Thus, there was no discussion concerning the
inventory situation, nor was Olan contacted, before Oc-
tober 18. All authorization cards had been signed by Oc-
tober 13.
As noted above, the Employer's various violations of
Section 8(a)(l) represent its swift response to the em-
ployees' organizational activity. As earlier observed, the
Employer had been long-plagued with the problems it
asserts justified the closing. I have discredited the Em-
ployer's effort to conform the closing to a slack business
period. Accordingly, I conclude the record supports the
inference, which I make, that the timing of the closure
on October 19 is directly related to the union activity.
(g) Curtailment of laundry operations on October 19
was contrary to the Employer's past practice. With only
a single exception, the laundry had not been shut down
to such an extent at any earlier time. That exception oc-
curred in January when the laundry was closed for 2
days for the installation of an ironer. The ironer is the
largest single piece of equipment in the laundry. Fox ac-
knowledged all other repairs in 1979 were accomplished
without interruption of normal operations. My analysis
of the work performed during the October-November
curtailment leads to the conclusion that such work was
not markedly different from that which was done during
earlier periods of 1979 when no shutdown occurred. This
conclusion is based upon an analysis of the monthly
repair costs during 1979, together with Fox's detailed de-
scriptions of the work performed which gave rise to
those costs.
The installation and repair work is described, supra.
The repair costs are: January-2,281; February-$1,644;
March-S656; April-$534; May-$180; June-$1,118;
July-206; August-$1,167; September-$1,459; Octo-
ber-S251; Shutdown-853.
Thus, the total repair costs for all of October until the
December resumption of operations ($1,104) was actually
less than the repair costs of September, August, June,
February, and January. This context tends to support the
General Counsel's claim the shutdown did not have to
occur when it did and enhances a conclusion the Em-
ployer's reasons for it are pretextuous.
(h) The Employer's defense was expounded by a wit-
ness only partially credible. For reasons stated above, I
have already discounted critical aspects of Fox's defense
testimony. In addition, a review of Fox's description of
his precurtailment activity in arranging for subcontract-
ing reveals that testimony to be distorted. Thus, Fox's
account of when he contacted Olan and Purtz was gen-
eralized. Although Olan's and Purtz' testimony regarding
contact dates was not specific in some respects, their re-
counts portray Fox's activity with more certainty than
his own narration.
The generalization and distorted character of, and the
contradictions in, Fox's testimony are persuasive indica-
tors of the Employer's efforts to conceal its true motiva-
tion.
Upon all the foregoing, I find the Employer's reasons
asserted for the October 19 closedown, dismissal of its
employee complement in the laundry, and failure to
recall those employees in December a pretext to mask its
intent to destroy the Union's majority and its discrimina-
tory motivation in taking those actions. Accordingly, I
find that each of the allegations of discrimination con-
tained in the complaints has been sustained by a prepon-
derance of the credible evidence.
D. Refusal To Bargain
As indicated, the complaint alleges the Employer un-
lawfully refused to bargain with the Union by engaging
in a course of conduct, manifest by the unlawful 8(a)(l)
and (3) activity found above, designed to dissipate the
Union's majority status; and by refusing and failing to
recognize and bargain with the Union on and after Octo-
ber 22.
The Employer interposed affirmative defenses which
claim the laundry employees were subject to the oper-
ation of the Employer's collective-bargaining agreement
with the Hotel and Restaurant union; the aforesaid agree-
ment constituted a contract bar to the union's claim; and
the laundry employees do not comprise an appropriate
unit for collective bargaining. Apparently content with
resting upon the bare assertions of its pleadings, the Em-
ployer did not specifically discuss the refusal to bargain
allegations in its post-hearing brief.
The 8(a)(5) allegations require a resolution of a thresh-
hold issue. Specifically, it must be determined whether
or not the collective-bargaining agreement which explic-
itly covered the Employer's kitchen and dining room
employees also applied to the laundry employees.
In agreement with the General Counsel, I conclude
the evidence shows the laundry employees, in fact, were
unrepresented at all material times. My conclusion is
based upon the following:
(1) The existing agreements explicitly describe their
provisions extend to kitchen and dining room units; (2)
MAXWELL'S PLUM 9
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board's prior unit determination regarding the instant
Employer (198 NLRB 14 (1972)) does not refer to laun-
dry employees; (3) employee witnesses uniformly testi-
fied they knew of no incumbent union which represented
them, paid no dues, assessments or initiation fees to any
labor organization, and saw no such representative in the
laundry; and (4) the laundry's separate location, supervi-
sion and other operations described in earlier sections of
this decision, together with the Board's refinement of ap-
propriate units in New York City restaurants (Toffenetti
Restaurant Company, Inc., 133 NLRB 640 (1961), and
MPC Restaurant Corp., supra) reflect it was not within
the contemplation of the instant Employer and Hotel and
Restaurant union that their collective-bargaining agree-
ment should apply to the laundry employees.
I now turn to the merits of the refusal to bargain alle-
gations
1. The appropriate unit
The relevant facts regarding appropriateness of the
laundry unit are contained above in sections II,A and
II,B,(I). In its totality, the evidence reveals the laundry
to be a physically separate and managerially autonomous
entity. There is scant evidence of employee interchange.
Even when such interchange occurs, it is sporadic. The
laundry operations are functionally separate from both
the kitchen and dining room operations. Accordingly, I
find a separate unit of the Employer's laundry employees
appropriate for collective-bargaining purposes. Ramada
Inns, Inc., 221 NLRB 689 (1975); MPC Restaurant Corp.,
supra. Additionally, the testimony of the employee wit-
nesses demonstrates no apparent effort by Hotel and Res-
taurant union to represent them. Thus, there exists no
evidence of a bargaining history in the broad unit
claimed appropriate by the Employer's pleadings.
2. The request to bargain
It is alleged (complaint paragraph 12(a)) that the
Union made a written request of the Employer for rec-
ognition as bargaining agent of the laundry employees
"on or about October 22." During his testimony, Fox ad-
mitted he received the recognition request approximately
10 days after the October 19 closing. Accordingly, I find
that the Union did make the requisite request to bargain.
There is no evidence which permits me to determine the
precise date which should be fixed in this connection. In
any event, whether the date is October 22, 29, or any in-
tervening date, the remedy which I shall recommend
will be unaffected. Accordingly, I find the union request-
ed recognition some time in late October.
3. The union's majority
As noted in section II,C,(I), 9 of the 13 unit employees
had signed union authorization cards by October 13. The
unit composition remained constant to the October 19
shutdown.
Most of the authorization cards are printed in Spanish.
No translation was provided for my purposes. However,
Holmes' card is printed in English. All authorization
cards were received in evidence without objection. No
party asserted any disparity between the English and
Spanish versions. Thus, I find, consistent with the lan-
guage of Holmes' card, that the signatories designated
and authorized the Union "as . . . (their) . . . exclusive
collective-bargaining agent in all matters pertaining to
wages, rates of pay and conditions of work."
Where, as herein, an employer "engages in conduct
disruptive of the election process, cards may be the most
effective-perhaps the only-way of assuring employee
choice." N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575, 602 (1969). Accordingly, based upon all the forego-
ing, I find that the Union enjoyed majority status as col-
lective-bargaining agent of the appropriate unit of laun-
dry employees at all times material herein.
4. The refusal to bargain
The Employer's pleadings deny it failed and refused to
recognize and bargain with the Union. Nevertheless, the
record is devoid of evidence showing the Employer so
much as responded to the Union's request to bargain, ad-
mittedly received. In fact, all evidence points to the con-
trary. Thus, not all former employees were recalled to
work in December. Instead, the December laundry com-
plement consisted mainly of new hires; Caldas solicited
employees to join the Hotel and Restaurant union; and
the affirmative defenses assert the Employer's belief that
the laundry employees were already represented by the
Hotel and Restaurant union.
Moreover, the Employer's unlawful 8(a)(1) and (3) ac-
tivity could not help but dissipate the Union's majority
status. The unfair labor practices found herein were per-
vasive. The leading union proponents were not recalled,
and a total of two-thirds of the cardsigners were not re-
called. The unlawful interrogations, threats, and impres-
sion of surveillance were immediately followed by the
dismissal of all employees.
Upon all the foregoing, I find the Employer refused to
bargain in violation of Section 8(a)(5) of the Act as al-
leged in the complaint. N.L.R.B. v. Gissel Packing Co.,
Inc., supra.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of section 2(5) of the Act.
3. The Employer interfered with, restrained, and co-
erced its employees on October 18, 1979, by unlawfully
interrogating them concerning their union activities and
threatening them with economic reprisals cause they en-
gaged in such activities all in violation of Section a)(l) of
the Act.
4. The Employer interfered with, restrained, and co-
erced its employees, on October 19, 1979, when its su-
pervisor, Caldas, asked employee Holmes if she knew
that employees had joined a union.' 6
'6 This unlawful interrogation is not separately alleged in the com-
plaint However, the fully litigated facts which support this violation are
Continued
MAXWELL'S PLUM 221
5. The Employer interfered with, restrained, and co-
erced employees, on October 19, 1979, by threatening
they would regret joining the Union; and created an im-
pression that the union activities of its employees were
under surveillance, all in violation of Section 8(a)(1) of
the Act.
6. The Employer discriminated, and is discriminating,
against its employees in violation of Section 8(a)(3) and
(1) of the Act by having substantially closed its laundry
operations and dismissing all its laundry employees on
October 19, 1979; by thereafter curtailing its laundry op-
erations until December 6, 1979; and by failing to recall
its former employee complement to work on and after
December 6, 1979.
7. The Employer has refused, and is refusing, to bar-
gain collectively in good faith with the Union, on and
after sometime in late October 1979, by having engaged
in a course of conduct to dissipate the Union's majority
status and by having failed and refused to grant recogni-
tion to the Union as the collective-bargaining representa-
tive of the laundry employees in the unit found appropri-
ate in the following paragraph.
8. All full-time and regular part-time laundry employ-
ees including feeders, receivers, folders, washers and
packers employed at the Employer's 317 East 64th
Street, New York, New York facility, but excluding
guards, all other employees and supervisors as defined in
the Act constitute a unit appropriate for purposes of col-
lective-bargaining within the meaning of Section 9(b) of
the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
IV. THE REMEDY
Having found that the Employer violated Section
8(a)(5), (3), and (1) of the Act, I shall recommend it
cease and desist from engaging in such conduct in the
future and affirmatively take such action as will dissipate
the effects of its unfair labor practices.
Because the October 19 terminations have been found
unlawful, the Order shall require the Employer to offer
full and immediate reinstatement to the following named
employees to the former or substantially equivalent job
held by each, without prejudice to his or her seniority or
other rights and privileges: Maria Acevedo, Gloria Cruz,
Graciella Gomez, Alexandria Holmes, Ana Rodriguez,'7
Domingo Rodrigues, and Gladys Rodriguez.
Because the October 19 terminations have been found
unlawful, the Order shall require the Employer to make
whole each of the employees named immediately above,
together with those employees whose names appear
below, for any loss of earnings he or she may have suf-
fered as a result of the discriminatory terminations by
payment of a sum equal to that which each would have
earned, absent the discrimination, to the date of the Em-
reported, supra, in sec. II,B,(2). Such fully litigated. but unpleaded, mat-
ters appropriately provide a basis for findings of violation. Vic Tanny In-
ernatrional, Inc., 232 NLRB 353 (1977), enfd. 622 F2d 237 (6th Cir
1980).
" If this name refers to the same individual known as Ana Cerdas.
then an offer of reinstatement need not be made. As earlier noted. Cerdas
appears on the Employer's payroll for the week ending December
ployer's offer of reinstatement made to each: Dolores
Aguilo (also known as llda Marquez), Maria Ramos,
Marina Rodriguez, Pautino Rodriguez, Esperanso Ron-
quillo, and Guarino Rodriguez. Loss of earnings for all
discriminatees named shall be computed as prescribed in
F. W. Woolworth Company, 90 NLRB 289 (1950), plus in-
terest as set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962), and Florida Steel Corporation, 231
NLRB 651 (1977).
To remedy the Employer's unlawful refusal to bargain,
I conclude a bargaining order is warranted. The facts
show the Employer embarked on an extensive and per-
vasive campaign to thwart the laundry employees' orga-
nizational efforts and rid itself of the Charging Party by
destroying its majority support.
Whether such circumstances impel entry of a bargain-
ing order turns on whether there exists the reasonable
possibility of erasing the effects of the unfair labor prac-
tices found herein. This determination requires evaluation
of whether a fair election may be conducted or whether
employee sentiment once expressed through authoriza-
tion cards, on balance, will be better protected by a bar-
gaining order. Among the factors material in making the
required assessment are the extensiveness of the unfair
labor practices in terms of their effect upon election con-
ditions and the likelihood of their recurrence in the
future. N.L.R.B. v. Gissel, supra, 395 U.S. at 614-615.
Herein, the Employer's unfair labor practices began
virtually on the heels of the employees' initial organiza-
tional activities. Thus, Fox's first call to outside contrac-
tors occurred, for all practical purposes, simultaneous
with the union activity. Thereafter, the Employer en-
gaged in a rapid succession of misconduct. Those activi-
ties consisted of unlawful interrogation, threats of repris-
al and creation of an impression of surveillance which
were designed to reach each and every unit employee. It
is recalled Caldas asked Holmes to tell the other employ-
ees they would regret having joined the Union.
The Employer continued its course of ridding itself of
the Union and its adherents. Fox immediately followed
Caldas' unlawful 8(a)(l) conduct with his announcement
that all laundry employees were dismissed and the laun-
dry would be shut down. Then, the Employer consum-
mated its arrangement to contract out the laundry work.
These acts effectively deprived the unit employees of
employment opportunities.
The unlawful program continued. During the shut-
down, the Employer ignored the Union's request for rec-
ognition and bargaining.
When the laundry resumed operations, the Employer
implemented the new employment standard of family re-
lationship. This prevented some union adherents from
being recalled. Holmes and Acevedo, leading union pro-
ponents, were not recalled. To wipe the slate clean, the
Employer then hired new employees to fill the unit com-
plement.
At that point, the Charging Party was totally eliminat-
ed from the picture. However, it appears the Employer
was not yet satisfied. Thus, Caldas solicited employees to
join the Hotel and Restaurant union. This action of so-
lidification of the Employer's position, in my opinion, ad-
MAXWELLS P UM
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dresses the issue of the Employer's potential for engag-
ing in similar unlawful conduct in the future.
Absolutely no evidence was adduced to show the Em-
ployer did anything to neutralize the effects of any of its
misconduct.
I conclude the foregoing demonstrates that the unfair
labor practices found are extensive and broad. It is ines-
capable that the Section 8(a)(1) conduct, followed by
mass dismissal from work, at the very least, arguably
rendered the Union unable to maintain its majority
status.
Further, I conclude the Board's normal cease-and-
desist, reinstatement-backpay, and notice-posting order
would be insufficient to permit a fair election within a
reasonable time. The Employer carried out its threat that
the employees would regret joining the Union. They
were dismissed. Most of them were not recalled. The
leaders among them still have not been offered reinstate-
ment. Faced with such realities, it is difficult to perceive
how the voters could make a rational choice in an elec-
tion. Employees are particularly sensitive to the prospect
of losing their jobs because of unionization and receiving
benefits for rejection of a union. See N.L.R.B. v. Ex-
change Parts Company, 375 U.S. 405, 409 (1964). Accord-
ingly, I think it unlikely that the coercive impact of the
particular unfair labor practices shown in the case at bar
would be overcome by a Board-composed notice under
Board (and perhaps judicial) compulsion, or even by the
return of the discriminatees if they should choose to
accept reinstatement offers. See N.L.R.B. v. Henry
Colder Co., 447 F.2d 629, 631 (7th Cir. 1971).
The events herein are strikingly similar to those found
in Jim Baker Trucking Company, 241 NLRB 121 (1979).
There, the Board found an employer's unlawful program,
virtually identical to that herein, was sufficiently serious
to warrant issuance of a bargaining order. Thus, consist-
ent with my earlier stated conclusions, I shall recom-
mend the Employer be ordered to recognize and bargain
with the Union. Pursuant to the principles and rationale
contained in Trading Port, Inc., 219 NLRB 298 (1975),
the bargaining order will be effective from October 18,
1979. The date upon which the Employer overtly em-
barked on its unlawful campaign. Beasley Energy, Inc.,
d/b/a Peaker Run Coal Company, Ohio Division 1, 228
NLRB 93 (1977).
Finally, under the teaching of Hickmort Foods, Inc.,
242 NLRB 1357 (1979), 1 conclude the Order should
contain broad proscriptive language. As indicated above,
the instant Employer earlier had been found guilty of
8(a)(1) conduct similar to that herein (MPC Restaurant
Corp., supra). In Hickmort, the Board stated, "repeat of-
fenders and egregious violators of the Act would be sub-
ject to the traditional Board remedy for conduct which
requires broad injunctive relief." This particular employ-
er has been formerly found guilty of engaging in unfair
labor practices. Thus, it has demonstrated a proclivity to
violate the Act. I conclude the repetition, as demonstrat-
ed by the instant case, of its misconduct requires entry of
a broad order. Accordingly, the Order herein shall re-
quire the Employer to refrain from in any other manner
interfering with, restraining, and coercing its employees
in the exercise of their Section 7 rights.
Upon the above findings of fact, conclusions of law,
the entire record of this case, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER l 8
The Respondent, Le Roy Fantasies, Inc., and Hard-
wicke's Plum, Inc., a Joint Venture, d/b/a Maxwell's
Plum, New York, New York, its and their officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating, threatening economic reprisals, and
creating impressions that its employees' union activities
are under surveillance.
(b) Discriminating against its employees because they
engage in union activities.
(c) Refusing to recognize and bargain collectively in
good faith with the collective-bargaining agent of its
laundry employees.
(d) Engaging in a course of conduct designed to dissi-
pate the majority status of its laundry employees.
(e) In any other manner interfering with, restraining,
and coercing its employees in the exercise of the rights
guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer immediate and full reinstatement to Maria
Acevedo. Gloria Cruz, Graceilla Gomez, Alexandria
Holmes, Ana Rodriguez,' 9 Domingo Rodriguez, and
Gladys Rodriguez to his or her former job or, if that po-
sition no longer exists, to a substantially equivalent posi-
tion of employment, without prejudice to his or her se-
niority or other rights, privileges, and benefits; and make
each of them whole in the manner described above in
the section entitled "The Remedy" for any loss of pay or
other benefits suffered by reason of their discriminatory
October 19, 1979, dismissals and their failure to be re-
called to work on or about December 6, 1979.
(b) Make whole, in the manner described above in the
section entitled "The Remedy," Dolores Aguilo, Maria
Ramos, Marina Rodriguez, Pautino Rodriguez, and
Esperanso Ronquillo for any loss of pay or other benefits
suffered by reason of their discriminatory dismissal on
October 19, 1979.
(c) Forthwith recognize and, upon request, bargain
collectively and in good faith with Amalgamated Service
and Allied Industries Joint Board, Amalgamated Cloth-
ing and Textile Workers Union, AFL-CIO, CLC, retro-
actively to October 18, 1979, as the exclusive representa-
tive of the employees in the bargaining unit described
below with respect to wages, hours, and other terms and
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment. The appropriate unit is:
0' 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. 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.
11 No reinstatement offer need be made to this employee if she is also
kno n as Ana Cerdas.
MAXWELL'S PLUM 223
All full-time and regular part-time laundry employ-
ees including feeders, receivers, folders, washers,
and packers employed at the Employer's facility at
317 East 64th Street, New York, New York, but ex-
cluding guards, all other employees and supervisors
as defined in the Act.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay and
interest due under the terms of this Order.
(e) Post at its 317 East 64th Street, New York, New
York, facility, copies of the attached notice marked "Ap-
pendix." 2 0 Copies of said notice, on forms provided by
the Regional Director for Region 2, after being duly
20 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
signed by an authorized representative of the Employer,
shall be posted by the Employer immediately upon re-
ceipt thereof, and be maintained for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Employer to insure
that the notices are not altered, defaced, or covered by
any other material.
The record reflects that the vast majority discriminates
and current employees are Spanish-surnamed. Most of
such employees who testified did so through the use of a
translator. Accordingly, I consider it appropriate that the
Regional Director arrange for Spanish-language transla-
tions of the notice required to be posted by this Order
and forward such translated notices to the Employer for
posting. Thereafter, the Employer shall post both the
English and Spanish versions of the notice and all other
requirements of the posting Order shall be applicable to
both notices.
(f) Notify the Regional Director for Region 2, in writ-
ing, within 20 days from the date of this Order, what
steps the Employer has taken to comply herewith.
MAXWELL'S P UM 3