Mounia, Ltd.

National Labor Relations Board - Board Decisions

Jun 19, 1972

197 N.L.R.B. 697 (N.L.R.B. 1972)

MOUNIA, LIMITED
Mounia, Limited and New York Hotel and Motel
Trades Council , AFL-CIO. Case 2-CA-12398
June 19, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On December 29, 1971, Trial Examiner Paul E.
Weil issued the attached Decision in this proceeding.
Thereafter, General Counsel and Charging Party
filed exceptions and supporting briefs.
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 Charging Party's subsequent Motion To
Withdraw Charges, infra. The Board has decided to
affirm the Trial Examiner's rulings, findings, and
conclusions, except as they pertain to the alleged
8(a)(5) violations, and to adopt his recommended
Order.'
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 and hereby orders
that Respondent, Mounia, Limited, New York, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
recommended Order.
i On April 19, 1972, while the instant case was pending before the Board,
Charging Party filed with the Board a motion to withdraw all of its unfair
labor practice charges except for its 8(a)(3) charge General Counsel filed a
written response consenting to the withdrawal of the 8(a)(5) charge but
opposing the withdrawal of the 8 (a)(1) charge In view of the General
Counsel's opposition, we grant the Charging Party's motion only with
respect to the alleged 8(a)(5) violations We therefore dismiss the 8(a)(5)
charge without considering its merits M N Landau Stores, Inc, d/b/a
Clark's Discount Department Stores, 168 NLRB 273, fn. 1, Tuscarora Plastics
Co, 167 NLRB 1059, 1068-69.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner : On June 3 , 1971, New
York Hotel and Motel Trades Council , AFL-CIO,
hereinafter called the Union , filed a charge with the
Regional Director for Region 2 of the National Labor
697
Relations Board , hereinafter called the Board , alleging that
Mouma , Limited, hereinafter called Respondent , engaged
in activities in violation of Section 8(a)(1),(3), and (5) of the
Act by various acts and conduct including the layoff of
seven employees and the refusal to recognize the Union.
On September 13, 1971, the said Regional Director, on
behalf of the General Counsel of the Board , issued a
Complaint and Notice of Hearing alleging violations of
Section 8(a)(1), (3) and (5) and alleging further that a strike
of Respondent's employees was the result of Respondent's
unfair labor practices and accordingly is an unfair labor
practice strike . By a duly filed answer , Respondent
admitted and denied various allegations and specifically
denied each allegation of the commission of an unfair
labor practice . The matter came on for hearing before me
in New York City on October 27 through November 2,
1971. All parties were represented by counsel and had an
opportunity to adduce evidence , call witnesses, and
examine and cross -examine them, to argue on the record,
and to submit briefs . Briefs have been received from the
General Counsel and the Respondent.
Upon the entire record and in consideration of the briefs,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a New York corporation operating a
restaurant in the city of New York . The operation of the
restaurant commenced in February 1971. A projection of
its gross revenues from the sale of food and beverages on
an annual basis reveals that Respondent's volume of retail
sales will exceed $500,000 per year, and that its purchases
of goods and materials delivered to it from other New
York enterprises , each of which received the said goods
and materials in interstate commerce directly from States
of the United States other than the State of New York and
in foreign commerce directly from nations other than the
United States, exceeded $50,000 . Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In December 1969 Arthur Kettler , president and manag-
ing agent of Respondent , signed a lease on the space
theretofore occupied by the restaurant facilities of the
Lancaster Hotel in midtown Manhattan . In January 1970
the corporation commenced construction in the space of a
197 NLRB No. 102
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restaurant designed to simulate similar establishments in
the Kingdom of Morocco.' The construction was complet-
ed within 4 or 5 months, but the liquor license, felt
necessary to the establishment of the restaurant, was not
issued until February'19, 1971. At this time the restaurant
commenced operation. At the time the restaurant opened,
the corporation had an investment in it of some $360,000.
Kettler had not previously been in the restaurant business,
but operated a discotheque and a nightclub prior to his
engagement with Respondent.2
Early in 1970 Vito Pitta, vice president of Local 6 Hotel,
Motel & Club Employees Union, which is 1 of 10 local
unions affiliated with the Hotel Trades Council, became
aware of renovation in the Lancaster Hotel restaurant area
and ascertained through the hotel that the space had been
leased to Kettler, who was planning to open a new
restaurant .3 Pitta contacted Kettler and had discussions
regarding signing a contract covering the restaurant
employees when the restaurant opened. He asked Kettler
to rehire the people who had formerly worked in the same
space, but Kettler replied that this would be a specialized
operation and that he was looking for French-speaking
employees. Pitta pointed out that the Union's membership
included a lot of French-speaking people and that it would
be able to fill his needs.
During the period of time between the construction of
the restaurant and its opening, Pitta continued to see
Kettler on occasion. On each such occasion he asked
Kettler to sign a contract. Kettler apparently temporized in
his answer stating that he would have to discuss the matter
with his lawyer or that he would have to discuss the matter
with Mr. Hassan.4 Kettler also suggested that he would
sign a members-only contract which was refused by Pitta,
who said he would not accept a members-only contract
because all of the people who were employed there before
were in the Union. According to Pitta's testimony, which is
denied in this regard by Kettler, Kettler agreed at one
point to sign a contract and a contract was left with him.
Kettler's version is that he agreed to sign a members-only
contract and I credit him in this regard.
It does not appear that Kettler availed himself of the
Union's services in recruiting employees. Some of the
employees were recruited in Madrid, Spain, or in Morocco
by Hassan and his brother-in-law, apparently another of
the principals of the operation, and by Mohamed Sbai, the
kitchen supervisor, or steward. Other employees were hired
locally; many of them were Spanish speaking.
When the restaurant had opened for business, Pitta
continued to press Kettler for a contract, but without
success, although Kettler continued to offer to sign a
contract on a members-only basis. On or about May 10,
1971, the Hotel Trades Council commenced picketing at
Respondent's restaurant with signs stating that it was
1 Ninety percent of the furnishings of the restaurant were made in
Morocco and flown to the United States.
2 Prior to his nightclub experience Mr Kettler had been employed with
the Internal Revenue Service and had retired
3 The Union had members employed by the restaurant which preceded
Respondent in the restaurant space at the Lancaster Hotel
4 The reference is to Hassan Bereda, whom the record reveals to be one
of the owners of the restaurant.
nonunion and the employees were not "enjoying the hours,
wages and conditions of the union contract."
In the week of June 21 the Union commenced an
attempt to organize the employees of Respondent. Meet-
ings were held with groups of employees in locations near
the restaurant, and some of the employees took authoriza-
tion cards into the restaurant and solicited their fellow
employees to sign them. As a result of the organizing
campaign by June 28 the Union had 25 or 26 signed
authorization cards in its possession. At this point, Pitta
sought out Kettler and told him that he had a majority of
the employees signed up. He again asked the Respondent
to sign a contract. According to the testimony of Pitta,
when he stated that he had 25 or 26 cards, Kettler said that
it was impossible and Pitta said that he would have a
meeting the following day with the employees and invited
Kettler to attend and see for himself. Kettler agreed to
attend this meeting. According to Kettler, Pitta did not, on
June 28, request recognition but came into his office to
invite him to attend the union meeting . Kettler offered him
the use of the restaurant's discotheque room which was not
in use ,5 and agreed to attend the meeting. On cross-
examination Kettler stated that he could not recall the
reason for Pitta inviting him to attend the meeting of
employees, but admitted that Pitta may have stated a
reason and that it might have been to demonstrate to him
the Union's support among Respondent's employees.
According to Kettler it was not until the following day,
June 29, that Pitta demanded recognition and stated that
he had 25 or 26 cards, or a majority of the employees
signed up. -I discredit Kettler in this regard. It appears that
the cards were all signed prior to June 26, Saturday, and
were in Pitta's hands' by the close of that day. It is
inconceivable under the circumstances that Pitta, with
what he believed to be a majority of cards, would have
called on Kettler on the following Monday solely to invite
him to a meeting without demanding recognition, which he
believed he had a right to have at that time. Accordingly I
find that recognition was demanded about noon of June
28 .6
Shortly after the demand for recognition was made,
about noon on June 28, Hassan Bereda gave the cook,
Abdulitif Kdiry, hereinafter called Abdul, a list of the
employees in the restaurant and told him to find out from
the employees whether or not they favored the Union.
Abdul first asked a fellow Moroccan employee, Abdesslam
Ouahrouch, who was in the unit, and then was proceeding
to other employees when Sbai, who had informed Kettler
of Hassan's action in giving a list to Abdul, and had been
told by Kettler to get the list back, took the list from Abdul
and destroyed it. Neither Sbai nor Kettler made any
attempt apparently to ascertain to what extent Abdul had
conducted the inquiry. There is no evidence that any
attempt was made to reassure either Abdul or Ouahrouch
5 The room has not yet been opened The restaurant is seeking a zoning
variation to pernut it to operate a discotheque.
6 Respondent attempts to bolster Kettler 's version by pointing out that
he almost never comes to the restaurant before 2 p .m. However , the record
reveals that Hassan, who exercised top-management authority , had been
absent on a holiday for several days, and amved back on Monday , June 28
I believe it is probable for this reason Kettler amved at the restaurant
somewhat earlier than his normal custom dictated.
MOUNIA, LIMITED 699
that Respondent's questioning did not pose a threat to
them because of their union activities.
At about 5 p.m. on June 28 Kettler and Sbai laid off
seven employees, telling them that the work was slow and
they were not needed and that they could expect to be
recalled in September, when the discotheque room opened
and Respondent anticipated an increase in custom.
When the employees were laid off word soon came to
Pitta, who was on the picket line at the time. According to
his testimony he took Carlos Lopez, another union agent
who was assisting him in the organization, and spoke
Spanish, to protest the layoff of the employees. The record
does not reveal that he did protest the layoff, but instead
he asked Kettler if the meeting for the next day was still on,
and Kettler said that it was. Kettler left the office and
came back in a few minutes and said that there was no
need to attend the meeting.?
On the following day, June 29, the employees became
aware of the layoff of their seven fellow employees. A
number of them, led by the bartender of the service bar,
Jose Farah (hereinafter called Pepe), all left at the close of
their early shift, 2:30 p.m., and joined the picket line. By
this time the picket line had been augmented by hired
pickets and the signs that they bore included new signs,
one contending that Respondent was guilty of unfair labor
practice and the other bearing the legend "I was fired for
joining the Union." Shortly before 5 o'clock when Pepe
and the other employees were due to return to work, Pepe
addressed Kettler and said "I suppose that I have been
discharged." Kettler told him that he had not been
discharged and that he could go back to work at 5 o'clock,
his regular time. Pepe, however, stated that he would stay
out with the Union and did so. There is no evidence that
Pepe or Miguel Herrero, Ide Monduch, Miguel Riquelme
or Italo Valentini, other employees who left on June 29 to
support the Union, ever returned to work in the restaurant.
Also in the afternoon of June 29, Kettler gave Sbai
booklets explaining the medical benefits of the Blue Cross
Plan. Sbai gave one set to Jules Elmalen, a waiter who
speaks good English; 8 Elmalen translated the booklets to
Sbai. Sbai also gave a set of the booklets to Abdul and told
him that he was going to get the medical benefits specified
in the) booklets. Sbai also told Riquelme, who worked until
5 o'clock, at which time he joined the picketing, that
Respondent was going to give medical benefits to the
employees.
Still later on June 29, according to the testimony of
Riquelme, he was present with a group of employees when
Kettler came into the kitchen and was talking to them.
Riquelme speaks no English. Kettler speaks no Spanish.
Another employee, Fermin Dura, told Riquelme that
Kettler said that he did not want a union in the plant, but
wanted to be his own boss, and that he would rather sell his
business to some Chinese or Japanese businessmen than
have a union. This statement was denied by Kettler. In
view of the fact there is no direct substantial evidence that
the statement was made, Dura was not called as a witness
and Riquelme knew only what Dura told him, I do not find
that the statement was made by Kettler.
B. Discussion and Conclusions
1. The refusal to bargain
The unit: The General Counsel alleges that the appropri-
ate unit in the restaurant is a unit of all employees
including waiters, waitresses, busboys, captains, bartend-
ers, cooks, assistant cooks, hostess, dishwashers, and
porters, but excluding the maitre d', stewards, office-
clericals, reservation clerks, guards, cashiers, the doormen,
the watchmen, and supervisors, constituting a unit appro-
priate for the purposes of collective bargaining. The
General Counsel would also exclude checkroom attendants
who are not listed in the unit alleged to be appropriate in
the complaint. Respondent contends that the Board's
policy against "fractionalization of a unit" requires the
addition of the cashiers, reservation clerks, and checkroom
attendants.
First, with regard to the reservation clerk, it appears that
there is only one such person. She works in the office of the
restaurant and aside from general office typing, which she
does as a sideline, does nothing but take reservations
which, in a restaurant of this sort, is a more time-
consuming occupation than in most restaurants because
clients frequently require an explanation of the menu and
customs of the restaurant. The reservations after 6 p.m.,
when the reservation clerk goes home, are handled by the
maitre d'. There is no evidence indicating that the
reservation clerk has anything in common with the other
employees of the unit, all of whom are engaged in either
food-handling or customer service. She has no face-to-face
contact with either customers or fellow employees, and her
additional duties are all of the nature of office-clerical
employees, near whom she works. I see no community of
interest between the reservation clerk and the unit
employees, and accordingly I agree that she should be
excluded from the unit.
The cashiers, on the other hand, work in the kitchen at
the entrance to the dining room. Their function is to price
the items that the waiters write on their checks when the
waiters bring the checks in the kitchen to get their orders.
They then check the outgoing food against the checks to
ascertain that the waiters are delivering what was ordered
and that all food going out of the kitchen is on order by a
patron. Their hours are necessarily the same as the hours of
the waiters, i.e., the hours the restaurant is serving, and
they work in close proximity with the personnel in the
kitchen. I find that they have the same employment
interests as both the dining room and kitchen employees,
and accordingly, belong in the unit .9
The General Counsel would exclude the checkroom
7 Kettler states that this conversation took place on the 29th, and that his
decision to refuse to attend the meeting or to pernut it to be held in the
discotheque room resulted from Pitta's statement that he had 25 or 26
employees signed up which Kettler considered to be impossible I credit
Pitta with regard to this conversation . I believe it took place on the evening
of the 28th, after the layoff of the employees
8 Sbai speaks French and was interrogated through an interpreter. He
speaks little or no English
9 See Arlington Hotel Company, Inc, 126 NLRB 400, 405. The cashiers
appear to be roughly equivalent to the food checkers therein. While
Arlington was substantially chipped away by Water Tower Inn, A
Partnership, 139 NLRB 842, and LaRonde Bar & Restaurant, Inc., 145
NLRB 270, and finally overruled by the Board in 77 Operating Company,
160 NLRB 972, this was on other issues. It is notable that in each of the
(Continued)
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attendants solely on the basis that they have a minimal
community of interest with the kitchen, bar and dining
room employees. However, the checkroom girl serves the
same public as does the restaurant and works the same
hours under the same general supervision. She has no
community of interest whatsoever with the office-clerical
employees, the only significant excluded group of employ-
ees, and were she excluded from the restaurant unit, would
fall in no definitive grouping. Under the circumstances of
this case I find that she has enough community of interest
with the food service employees to warrant including her in
the unit.
2. The majority status of the union
The parties agreed on 37 employees who were in the
unit.i° In addition to the 37 employees the three disputed
classifications included 4 employees. I have found that the
two cashiers and the checkroom attendant are properly in
the unit. Accordingly the entire list consists of 40
employees in the unit.
The General Counsel introduced 22 cards and also
introduced the testimony of Juan Cuello that he signed and
turned over a card to an employer organizer. The card was
apparently lost. The presence of a signed authorization
card is not essential where, as here, the employer's refusal
to recognize the union is not based upon its observation of
the cards. The operative fact is the designation of the union
by the employee, and here, Cuello's testimony is unchal-
lenged. I shall add him to the list of employees who
authorized the Union to represent them.
Pedro Alibrandi signed a card and returned it to Pepe
who subsequently lost it.
Pepe informed Alibrandi that he had lost the card and
had no blank one for him to sign, whereupon Alibrandi
told him when he got a blank card to put his (Alibrandi's)
name on the card and turn it in. As the General Counsel
pointed out in his brief, the Board, under such circum-
stances, accepts the designation.
The Respondent contends that the cards of 11 of the
employees should not be counted because it was demon-
strated on the record that they could speak no English, the
language in which the cards are written. The record reveals
that the large majority of these employees spoke Spanish as
their native language. One or more of them spoke French.
Communication at the restaurant was apparently always
something of a problem because the restaurant manager,
Kettler, spoke neither French nor Spanish. The Union, in
its organizing, used Carlos Lopez, a Spanish-speaking
organizer, and the in-plant organizing was conducted by
Jose (Pepe) Farah, to whom Spanish is native, but who also
speaks English. There is no evidence that the subjective
intent of the employees was other than to authorize the
Union to represent them, and there is no substantial attack
on any of the signed cards.ii At the hearing Respondent
cited cases cashiers were included in the unit.
10 The Respondent contends that Jose Farah quit on June 29 prior to the
demand for recognition . The record, however, indicates that Farah joined
the strike on that occasion, and did not quit At any rate, I have found that
the demand was made on June 28 , rather than June 29. There is no
contention that Farah was not employed on June 28
11 Respondent contends that many of the cards are invalid because the
contended that the cards of four employees were invalid
because the person who identified the cards in each case,
Pepe, testified that he did not see the cards signed.
However, with regard to each of the employees, Pepe
testified that the blank cards were handed by him to the
employees who, within a few minutes , returned with the
signed card which they acknowledged as they gave to him.
The Board regularly accepts this type of evidence as
adequate substantiation of designation and I shall herein.
Respondent further contends that the cards of Abdul, his
wife Isabel, and three of the other Moroccan employees,
Bousolo , Ouahrouch and Garro were procured by gross
and material misrepresentations by Lopez, who solicited
the cards. The record reveals that the employees were
concerned about joining the Union because of their respect
for Hassan Bereda, a member of the Moroccan royal
family, and Lopez told these employees that there was not
going to be any trouble with Bereda because "the
Company was going to accept." This Respondent charac-
terizes as information to the employees that the Company
was desirous that they sign cards, an obvious misrepresen-
tation and, under the circumstances of the case, suffices to
invalidate the cards. The Respondent cites , as authority for
this proposition, Alaska Salmon Industry, Inc., and its
Member Employers, 122 NLRB 1552, the decision of the
Fifth Circuit in N.L.R.B. v. Texas Electric Cooperatives,
Inc., Treating Division, 398 F.2d 722 (C.A. 5, 1968). Neither
of the cases cited are apposite. They deal with employees
who are "not as capable in determining the value of
statements as others." There is no reason to assume that
any of the five persons involved herein are incapable of
dealing with the value of the statements made to them. On
the contrary, it appeared that all of the Moroccan
employees looked up to Abdul as a leader and an
intelligent man. Abdul testified, and there is no question,
that he is a person of intelligence . He did not appear to be
in any way naive. The record reveals that convincing
Abdul to sign a card was the key to the signatures of his
followers, particularly the four persons named. When the
layoffs took place and the Union determined that the
union members in the restaurant should strike, Abdul drew
the line at this point, stating that he and his wife would not
join in the strike, but that his wife would call in sick if that
would help, and in fact, it appears that she did so. At this
point there is no question that Abdul knew that the
Employer would not welcome the Union with open arms,
but nevertheless, was prepared to continue assisting the
Union. I do not believe that the cards should be
invalidated. I do not believe that the misrepresentation, if
such it were, was gross and material as characterized by
Respondent; the Respondent's offer to submit the issue to
the Board's election processes , as well as his offer to sign a
members-only contract, appears to me to give adequate
dates or other information, such as the name of the restaurant , were inserted
by persons other than the signers . The Board has never so held and
Respondent points to no authority for its assertion. The signature of the
employee is , in my opinion , the only element necessarily to be affixed by the
employee . The fact that some cards are undated is irrelevent in view of
extrinsic evidence that all of the cards were turned over to the Union prior
to the demand for recognition made on June 28 Accordingly , all, if
correctly dated , would have been dated prior to that.
MOUNIA, LIMITED 701
foundation to the representation made by Lopez. I reject
Respondent's contention in this regard.
I have found that 22 of the employees adequately
designated the Union as a collective-bargaining representa-
tive.12 The unit comprises 40 employees. Simple arithmetic
therefore reveals that the Union, at the time of the demand
on June 28, represented a majority of the employees in the
unit.
3. The layoff
The General Counsel contends that the seven employees
laid off on June 28 were laid off in order to chill the
Union's organizational attempt, and to convince employ-
ees that they should not accept the Union as their
collective-bargaining representative. The General Counsel
admits that there is no evidence of company knowledge.
The General Counsel also admits that his contention with
regard to the layoff is based solely on the timing and that it
is immaterial whether Respondent knew or even whether
the employees to be laid off were, in fact, cardsigners, as
they all were. I do not agree.
Kettler testified that the business of Respondent,
commencing roughly at about the time of the Union's
picketing, went into a rapid decline. Records supporting
the assertions of Kettler in this regard were furnished and
they bear him out. Indeed it appears that the, restaurant
portion of the business served approximately half as many
people in the week ending June 26 as in the week ending
March 20, the second week of operation. The food sales
were somewhat less than half, and the liquor sales slightly
over half. In the cocktail lounge, according to Joint Exhibit
5 prepared and proffered by the parties and hereby
received, business dropped from approximately $2,800 to
approximately $1,500. Kettler testified that, as a result of
the drop in business, the portion of income of Respondent
expended on wages exceeded 50 percent, which he
explained, based on his 25 years of auditing experience,
was too high to permit continuing in operation. As a result
of the decline in business, Respondent had, prior to June
28, determined that a layoff would have to take place.
Kettler consulted with some of the waiters, and they agreed
that they would do their own bussing. Accordingly, all
busboys then employed were placed on layoff. Two waiters
additionally were laid off, and a dishwasher and a kitchen
helper. A second kitchen helper was originally planned to
be laid off. However, it appears that Abdul intervened
when he learned of this fact stating that he needed the
additional kitchen helper who was his vegetable man.
Accordingly, his name was taken off the list.
When the employees were laid off, they were informed
that Respondent hoped to call them back at the end of
September by which time Respondent anticipated that it
would have received authority to open its discotheque
room which it hoped would considerably increase its
custom. Kettler testified that the layoff was predicated
solely on job classifications and that no names were keyed
into the list until Monday, June 28, at which time he
consulted with Hassan who had been away on a holiday;
and they "slotted in" the names. This was, of course, no
problem with regard to the busboys. All of them were laid
off. As to the others, Respondent contends, and there is no
evidence to the contrary, that three of them were the
employees with the least seniority in their job classifica-
tions, and the fourth was an unsatisfactory employee.
The General Counsel contends that Respondent has
hired many employees since the layoff without calling the
laid-off employees back. However, it appears that Respon-
dent tried to call back the sole dishwasher almost
immediately after his layoff because the other dishwashers
quit to join the picket line. The laid-off dishwasher already
had another job and did not return. Other than the
dishwashers, no employees in the job classifications
covered by the layoff were hired except for a waiter hired
July 31. It appears that each person hired took the place of
a person who ceased work other than the laid-off
personnel; and, as I construe the exhibits agreed to by the
parties, it does not appear that at any time since the layoff
has Respondent had any more employees than the figure to
which it reduced its employee complement by the layoff.
Thus, the waiter who was hired on July 31 presumably
took the place of a waiter who quit during the week of July
10.13
I do not believe that the General Counsel has carried his
burden of proving by a preponderance of substantial
evidence on the record that the layoffs were occasioned by
or in retaliation for the employees' desire to be represented
by the Union. I believe the evidence offered by Respon-
dent, and jointly by Respondent and the General Counsel,
of the serious reduction in Respondent's business demon-
strates that a layoff was necessary. Under all the
circumstances of this case, I can find insufficient union
animus to raise more than a suspicion , and suspicions are
certainly inadequate, on which to base a finding of a
discriminatory discharge. I shall recommend that the
complaint be dismissed insofar as the layoffs are alleged to
be a violation of Section 8(a)(3) of the Act.
4. The 8(a)(1) allegations
The General Counsel contends that, by the action of
interrogating the employees through Abdul, Respondent
violated Section 8(a)(1) of the Act. I have found that the
interrogation took place almost immediately after the
Union's demand for recognition. It is not inconceivable
that Hassan, having been informed that the Union claimed
to represent a majority of his employees, determined to
find out for himself and used Abdul, who was in a position
of trust and confidence with the employees, to this end. I
find that this was indeed a violation of Section 8(a)(1) of
the Act. None of the safeguards established by the Board
to reassure employees from whom the Employer seeks such
information were present, neither addressed to Abdul by
Hassan or to anyone else, nor by Abdul to Ouahrouch, the
only employee to whom he spoke before the list was
recovered by Sbai. Truly, it is a minimum sort of a
12 One of the cardsigners , Carlos Carrabello, does not appear on the
stipulated list or on the company records for that week Accordingly, only
22 of the cards appear to be signed by employees employed in the unit at the
time of the demand.
13 This was Constantinos Liakas, otherwise identified as "Dino," one of
the leading union adherents and one of the two union adherents admittedly
known to Respondent.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation under all the circumstances; but, nevertheless, it
is a violation and remains uncorrected.
The General Counsel also contends that Respondent
violated the Act by informing employees that they were
about to get Blue Cross coverage. I agree. The Respondent
contends that the coverage was merely the implementation
of a promise made to the Morrocan employees at the time
they were hired either in Madrid or Morocco by Hassan
and his brother-in-law and points out that in Morocco all
employees are covered by hospitalization insurance. There
is no evidence that any of the employees hired in the
United States, which comprised most of the employee
complement, had ever been told anything about hospitali-
zation; and there is no indication that Respondent, prior to
the advent of the Union, had ever made any attempt to get
hospital insurance coverage for its employees. However,
immediately after the demand, Kettler distributed the two
insurance booklets that had been left with him to Sbai and
through Sbai to the employees, especially Abdul. It was a
matter of immediate concern to both Sbai and Abdul,
because both of them had pregnant wives at the time and
were concerned over the hospital expenses that they were
committed to for that reason. Kettler testified that he had
contacted insurance companies with regard to hospitaliza-
tion insurance and had been informed that there was no
point in considering it for at least 6 months because of the
rapid turnover of the employees of the'restaurant during
the first 6 months of its operation. Indeed the evidence
reveals that there was a rapid turnover. There is no
explanation of the fact that, in spite of this advice, after 4
months of operation Kettler distributed the Blue Cross
booklets with the message that this was the hospitalization
that the employees were going to get.
Under all the circumstances I find that while Respon-
dent may have anticipated ultimately giving its employees
hospitalization, its decision to implement its promise given
to a few of the employees, many months before, prema-
turely, according to the advice that it contends it was
relying on, clearly resulted from the employees' union
activities. It has long been held by the Board that benefits
granted to employees during an organizing campaign have
the effect of interfering with their organizing activities in
violation of Section 8(a)(1) of the Act. I have no doubt that
this was the intended effect of Respondent's action with
regard to the insurance. Accordingly I find that Respon-
dent's activities constitute a violation of Section 8(a)(1) of
the Act.
Finally the General Counsel contends that the threat
allegedly made by Kettler, regarding selling the restaurant
to Chinese or Japanese businessmen because he did not
want a union, violates Section 8(a)(1) of the Act.
Unquestionably, had the General Counsel adduced evidence
that such a threat was, in fact, made by Kettler, I would
so find. However, the only evidence adduced was that one
employee told another that Kettler had so stated. The
intervening employee did not testify. The General Counsel
contends that because of the fact that Kettler spoke no
Spanish and some of the employees to whom he spoke
understood no English, Kettler in effect designated any
14 Fernun Dura , the person who allegedly translated Kettler's remarks,
was one of those who signed the union card
bilingual employee who happened to hear him as his
interpreter for the purpose of transmitting the message.
This is an interesting theory and, in fact, it appears that,
generally speaking, most messages from Kettler to the non-
English-speaking employees were so transmitted. -However,
where the alleged coercive statement is denied by Kettler,
as it was in this case, the hearsay testimony of the
employee is not enough to overcome the fact that neither
could Kettler understand the translation nor could the
employee who testified understand Kettler, and there is no
showing that the translation was correct or was all or in
part a product of the possible bias of the translater.14
Furthermore, the testimony of Riquelme places a pantry-
man named Carlos at the scene. The only Carlos on the list
of employees at this time was Carlos Sgro, who according
to General Counsel's brief, was present and prepared to
testify, but did not take the witness stand because
Respondent stipulated to the validity of his card. The
General Counsel does not explain why Carlos was not
called to corroborate the testimony of Riquelme, or at any
rate to demonstrate his inability to speak English, if that is
the case. Under all the circumstances, I find that there is
no substantial evidence on which I can find that the threat
was made, and I do not so find. I shall recommend that the
complaint be dismissed insofar as the threat is regarded.
5. The 8(a)(5) allegation
The General Counsel contends that under the Gissel
rule 15 a bargaining order should issue. The Supreme Court
in that case approved the Board's order of recognition in
situations where the union is found to have a majority at
the time a demand is made, in circumstances where
pervasive and outrageous unfair labor practices had been
committed by the respondent employer, having the effect
of coercing and restraining employees to such an extent
that a fair election would be impossible, or where the
unfair labor practices are of such a nature that the
possibility of erasing their effects by the Board's traditional
remedies, so that an election might be conducted under the
Board's "laboratory conditions," is improbable. The
Board, in construing Gissel, has weighed the intervening
unfair labor practices, both quantitatively and qualitative-
ly, to determine whether they would have effects so
coercive and pervasive as to require that the election
process be put aside and an immediate bargaining order be
issued to protect the employees' rights. I must do the same.
If the General Counsel had prevailed with regard to the
layoffs, and Kettler's threat to sell out, it is conceivable
that Respondent's unlawful conduct could be shown to
have a tendancy to undermine the Union's majority, and to
impede the election processes, but in view of the fact that I
have found as violative conduct only the minimal interro-
gation by Hassan through Abdul of Ouahrouch and the
distribution by Kettler of the Blue Cross booklets which
reached only a few employees, as far as the record reveals,
I find that the unfair labor practices are of such a minimal
nature that they do not render impossible the holding of an
election under the Board's laboratory conditions. On the
is N LR B. v Gissel Packing Company, Inc, 395 U.S. 575 ( 1969).
MOUNIA, LIMITED
contrary, I believe that a fair election could be conducted
at any time after a proper notice-posting period was to
expire. Accordingly, I shall not recommend the Gissel
bargaining order in the instant case, nor do I find a
violation of Section 8(a)(5) in Respondent's refusal to
recognize the Union.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with Respondent's opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair Labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1 All employees of Respondent at its New York, New
York, restaurant, including waiters, waitresses, busboys,
captains, bartenders, cooks, assistant cooks, hostesses,
dishwashers, porters, cashiers and checkroom attendants,
but excluding the maitre d', stewards, office-clericals,
reservation clerks, guards, cashiers, the doormen, watch-
men, and supervisors, as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
2. Since on or about June 25, 1971, a majority of the
employees of Respondent in the unit described above have
designated and selected the Union as their representative
for the purpose of collective bargaining with Respondent,
and at all times since such date the Union, by virtue of
Section 9(a) of the Act, has been and is now the exclusive
representative of all the employees in the said unit for
purposes of collective bargaining.
3. The Employer has not refused to bargain in violation
of Section 8(a)(5) of the Act.
4. By unlawfully interrogating its employees with
regard their union adherence, and by promising benefits in
the form of hospitalization insurance to its employees
during their organizing activities, thereby interfering with
their organizing activities, Respondent has interfered with,
restrained, and coerced employees in the exercise of their
rights protected by Section 7 of the Act, in violation of
Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent has not violated Section 8(a)(3) and (1)
of the Act in other regards as set forth above.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended: 16
ORDER
703
Respondent, Mounia Limited, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
a. Coercively interrogating its employees with regard to
their activities on behalf of New York Hotel and Motel
Trades Council, AFL-CIO, or any other labor organiza-
tion.
b. Promising its employees benefits in order to interfere
with their exercise of their self-organizational rights.
c. In any like or related manner interfering with,
restraining, or coercing any employees in the exercise of
their rights to self-organization, to form, join, or assist any
labor organization to bargain collectively through repre-
sentatives of their own choosing, to engage in concerted
activity for the purpose of collective bargaining or other
mutual aid or protection and to refrain from any or all
such activities.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
Post at its restaurant in New York, New York, copies of
the attached notice marked "Appendix." 17 Copies of said
notice, on forms provided by the Regional Director for
Region 2, after being duly signed by its authorized
representative, shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it 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 Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
Notify the Regional Director for Region 2, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondent has taken to comply herewith.18
IT IS FURTHER RECOMMENDED that the complaint be
dismissed in all other respects.
16 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , and recommended Order herein shall, as provided in
Section 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
it In the event that the Board 's 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 be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
18 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read
"Notify the Regional Director for Region 2, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ordered us to post this notice ; and we intend to carry out Dated By
the order of the Board and abide by the following:
WE WILL NOT ask our employees about their union
activities or whether they are in favor of the Union.
WE WILL NOT offer our employees benefits in order
to keep them from joining the Union.
WE WILL NOT in any similar manner interfere with,
restrain or coerce our employees in their rights
guaranteed by the National Labor Relations Act.
MouNIA, LIMITED
(Employer)
(Representative) (Title)
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 compliance with
its provisions may be directed to the Board's Office, 36th
Floor, Federal Building , 26 Federal Plaza, New York, New
York 10007 , Telephone 212-264-0300.