Nyari Odette, Inc.

National Labor Relations Board - Board Decisions

Apr 21, 1977

229 N.L.R.B. 137 (N.L.R.B. 1977)

NYARI ODET'E, INC.
Nyari Odette, Inc. and Local 274, Hotel & Restaurant
Employees & Bartenders International Union,
AFL-CIO. Case 4-CA-7884
April 21, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On January 21, 1977, Administrative Law Judge
Sidney J. Barban issued the attached Decision in this
proceeding. Thereafter, the Charging Party filed
exceptions.
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
attached Decision in light of the exceptions and has
decided to affirm the rulings, findings,l and conclu-
sions of the Administrative Law Judge, and to adopt
his recommended Order.2
We shall, however, modify the remedy herein to
conform with the Board's policy as expressed in
Valley Oil Co., Inc., 210 NLRB 370 (1974), and Drug
Package Company, Inc., 228 NLRB 108 (1977).
Respondent shall notify the discharged strikers
immediately that each will be reinstated upon
making proper application therefor. In addition
thereto, we shall modify the recommended Order to
provide that backpay commence for each striking
employee beginning 5 days subsequent to his
unconditional offer to return to work.3
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 Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Nyari Odette, Inc., New Hope, Pennsylvania,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as herein modified:
1. Substitute the following for paragraph 2(d):
"(d) Immediately notify those employees who have
participated in the strike which began on February
14, 1976, including Charlotte Besson, Helen Orlando,
Anthony Orlando, Virginia Owens, Michelle Owens,
John R. Oliver, Sallie Potts, Sallie Jean Potts, Anne
Besson, Deborah Deem, Peter Cruice, Maia Deem,
Marie Deem, John Owens, and Judith Ott, that it has
no objection to their reinstatement and, thereafter,
upon their unconditional application therefor, offer
229 NLRB No. 4
them reinstatement to their former jobs or, if such
jobs are not available, to substantially equivalent
jobs, and make them whole for the period commenc-
ing 5 days after the date of any such application for
any loss of pay they may have suffered by reason of
the discrimination against them, by payment to them
of a sum of money equal to the amount they
normally would have earned as wages and benefits,
in the manner set forth in the section of this Decision
entitled'The Remedy.'"
2. Substitute the attached notice for that of the
Administrative Law Judge.
I The Charging Party has excepted to the Administrative Law Judge's
failure to conclude that the Respondent effectively discharged its work force
prior to the time they engaged in protected concerted activity, and/or that
any application for reinstatement by said employees would have been futile.
These are essentially factual findings, turning on resolutions of credibility.
we have carefully examined the record and are unconvinced that a clear
preponderance of all of the relevant evidence reveals that the Administrative
Law Judge's credibility resolutions were incorrect and that his findings
should be reversed. In accord with our established policy in this regard, the
Charging Party's exceptions are hereby overruled. See Standard Dry Wall
Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951).
2 In par. 2() and (g) of the recommended Order, the Administrative Law
Judge inadvertently referred to Region I. This should read "Region 4."
3 Chairman Fanning. for the reasons stated in his dissenting opinions in
Valley Oil Co., Inc., and Drug Package Company, Inc., supra, would find that
all the discharged employees are entitled to backpay from the date of their
discharges, subject to normal offsets, until the date that each receives a valid
offer of reinstatement, and that, in the context of an unfair labor practice
strike, the 5-day rule has no logical application.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all sides had the opportunity
to present their evidence, the National Labor
Relations Board has found that we have violated the
law and and ordered us to post this notice.
WE WILL NOT engage in reprisals against our
employees for joining, assisting, or supporting
Local 274, Hotel & Restaurant Employees &
Bartenders International Union, AFL-CIO, by
changing working conditions, terminating privi-
leges previously enjoyed, or otherwise harassing
employees in order to discourage membership in
or support of that Union.
WE WILL NOT discharge, lay off, or otherwise
discriminate against employees because they
joined, assisted, or supported a union, or because
they engaged in a lawful strike or other lawful
concerted activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed by the National Labor
Relations Act.
137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request, bargain collectively
with Local 274, Hotel & Restaurant Employees &
Bartenders International Union, AFL-CIO, as
the bargaining representative of the employees in
the appropriate unit set forth below with respect
to employee wages and working conditions, and
any changes in wages and working conditions,
and, if an agreement is reached, we will embody
the understanding in a signed agreement. The
appropriate bargaining unit is:
All dining room, bar, kitchen employees,
hostesses, and hat check employees em-
ployed by the Company at its New Hope,
Pennsylvania, restaurant, excluding all other
employees, guards and supervisors as de-
fined in the National Labor Relations Act.
WE WILL make Charlotte Besson whole for any
loss of pay or benefits which she may have
suffered by reason of her termination from
employment until the date she declined to come
back to work.
WE WILL immediately notify Charlotte Besson,
Helen Orlando, Anthony Orlando, Virginia Ow-
ens, Michelle Owens, John R. Oliver, Sallie Potts,
Sallie Jean Potts, Anne Besson, Deborah Deem,
Peter Cruice, Maia Deem, Marie Deem, John
Owens, and Judith Ott that we have no objection
to their reinstatement, and that upon their
unconditional application for such, WE WILL offer
them reinstatement to their former jobs or, if
those jobs no longer exist, to substantially
equivalent jobs, and WE WILL make them whole
by paying them any wages and benefits they may
have lost because we discharged them unlawfully,
commencing 5 days after any such application for
reinstatement is made. If necessary, any replace-
ments hired since February 14, 1976, to replace
such employees, will be dismissed, and, if there
are still not enough positions available for all the
strikers, WE WILL put their names on a preferen-
tial hiring list to be employed before any new
employees are hired.
NYARI ODETTE, INC.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard at Philadelphia, Pennsylvania, on June 8,
9, 10, 11, and 14, 1976, upon a complaint issued on April
30, 1976, as amended at the hearing, based upon charges
filed on February 26 and March 16, 1976, by the above-
' The complaint alleges changes in two specific rules, but changes in
Respondent's rules generally and specifically, and changes in the manner of
named Charging Party (herein the Union). The complaint
alleges that the above-named Respondent (I) refused and
continues to refuse to bargain with the Union as a
representative of an appropriate unit of Respondent's
employees, (2) changed working conditions of its employ-
ees to retaliate against its employees for selecting the
Union as their bargaining representative,' (3) unlawfully
interrogated employees about union activities, (4) terminat-
ed Charlotte Besson because of her support of the Union,
and (5) discharged 15 named employees alleged to be
unfair labor practice strikers protesting the discharge of
Besson. It is alleged that Respondent violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended.
Respondent's answer denies the commission of the
alleged unfair labor practices, but admits allegations of the
complaint sufficient to justify the assertion of jurisdiction
under current standards of the Board (Respondent, in the
operation of a restaurant and bar at New Hope, Pennsylva-
nia, during a recent annual period had gross receipts in
excess of $500,000, and received goods valued in excess of
$10,000 directly from outside the Commonwealth of
Pennsylvania), and to support a finding that the Union is a
labor organization within the meaning of the Act.
There have been several motions, requests, and rulings
thereon, and attendant correspondence filed since the close
of the hearing. I have issued a separate order identifying
these matters, assigning exhibit numbers to them, and
receiving them into the formal file in this proceeding. These
posthearing matters involve the following: (I) A request by
Respondent (treated as a motion) that certain rules and
regulations assertedly promulgated by the Pennsylvania
Department of Enviornmental Resources be received in
evidence. Though the documents submitted were not
authenticated as I requested, in the absence of any claim
that they are not authentic, and over General Counsel's
objection, I have indicated to the parties that I would take
official notice of the documents submitted. This is
discussed hereinafter. (2) A motion by Respondent to
reopen the record for taking of additional testimony,
opposed by General Counsel and the Union, was denied
on the ground that the evidence proffered was available or
could have been obtained with due diligence and presented
at the hearing. (3) A motion by General Counsel to reopen
the record to receive portions of the transcript developed in
a 10(j) proceeding before the U.S. district court (occurring
after the close of the hearing in this proceeding) allegedly
affecting the credibility of a witness in this proceeding.
This motion, opposed by Respondent, was originally
denied on the basis that the motion did not provide a
sufficient basis for the action requested. General Counsel
thereafter provided certain additional particulars and
moved that the ruling denying the motion be reconsidered.
In opposing General Counsel's motion, Respondent,
relying upon the District Judge's findings and refusal to
grant a 10(j) injunction, assertedly on the same facts as in
the present proceeding, claims that the district court's
action constitutes res adjudicata of this case, and moves
that this proceeding be dismissed on that basis or on the
presenting such rules, were litigated extensively during the heanng, as
discussed hereinafter.
138
NYARI ODETTE, INC.
basis of collateral estoppel. Respondent's motion to dismiss
on the grounds stated is denied. See Acker Industries, Inc.,
184 NLRB 472 (1970).
The Board, in United Industrial Workers of North
America of Seafarers International Union of North America,
AFL-CIO-Pacific District, etc. (Sea-Land Service, Inc., et
al.), 207 NLRB 958 (1973), involving a motion identical to
that of General Counsel here under consideration, rejected
the motion to introduce a posthearing 10(j) transcript into
evidence, finding that the issues could be resolved on the
record already made and upon the contentions of the
parties. For the same reasons, as discussed hereinafter, I
find that it would serve no useful purpose to reopen this
matter further and I hereby deny General Counsel's
motion.
Upon the entire record in this case, from observation of
the witnesses and their demeanor, and after due consider-
ation of the briefs filed by the General Counsel, the Union,
and the Respondent, I make the following:
FINDINGS AND CONCLUSIONS
A. Introduction
For a number of years the Chez Odette Restaurant
(herein Chez Odette) at New Hope, Pennsylvania, was
operated by Odette Myritil (herein Odette). In the latter
part of April 1975, the operation of the restaurant was
taken over by John Nyari (herein Nyari), the principal
owner of Respondent. In the latter part of 1975, the Union
began an organizing effort at Chez Odette and on February
7, 1976 (all dates hereinafter are in 1976, unless otherwise
noted), an election was conducted by the Board in a unit of
dining room, bar, and kitchen employees and hostesses and
hatcheck employees of the restaurant, in which the
employees selected the Union by a vote of 15 to 3.
General Counsel's witnesses testified to a series of
incidents, allegedly harassing to the employees, occurring
shortly after the election and during the course of a week
thereafter. Prominent among these incidents was Respon-
dent's posting, on February 9, the next workday after the
election, of a sheet of rules for the conduct of the
employees allegedly different in form and substance from
previous practices. These rules, the reasons for their
posting, and the prior practices were much litigated.
General Counsel contends that Respondent posted these
rules, and engaged in other conduct discussed hereinafter,
in retaliation against the employees for selecting the Union.
B. Interference With, and Restraint and Coercion of
Employees
1. The work rules
Although there is some slight dispute as to the form and
content of the notice posted by Respondent, I find that the
following was the notice posted on February 9, on the
letterhead of Chez Odette:
2 An asserted state regulation against smoking in the kitchen is discussed
hereinafter. The testimony of the head chef. Respondent's witness, however,
NO SMOKING
THE SURGEON GENERAL ADVISES SMOKING CAN BE
DANGEROUS TO YOUR HEALTH.
WAITERS AND WAITRESSES
Each team is responsible for their own stations:
a.
b.
c.
d.
e.
Wipe chairs after each seating
Clean salt and pepper shakers
Refill Sugar
Individual coffee pots
Hair nets required on duty
ALL PERSONNEL ASSIGNED TO A STATION WILL REMAIN AT
THEIR STATION ALL DURING WORKING HOURS. IF STATION
IS SLOW CHECK WITH THE MANAGER AND WILL ASSIST
OTHER STATIONS IF BUSY.
APPEARANCE
WAITRESSES: Hair neat and orderly. Nails clean and
manicured. Blouse and uniform immaculate.
Stockings worn at all times. Shoes highly pol-
ished.
WAITERS: Hair combed and cut to reasonable length.
Nails clean and trimmed. Pants cleaned and
pressed. Shirt immaculate. Tie. Shoes neatly
polished. Apron free of stains.
/s/ John Nyari
Respondent's witnesses assert that these rules (except
that pertaining to hair nets) had been previously posted at
various times on separate sheets of paper. Nyari thought
that some of these might still be posted on the bulletin
board. However, these were not produced. General
Counsel's witnesses denied that such rules (except those
pertaining to "side work," i.e., subpars. a, b, c, d, above)
had previously been posted. Similarly, Respondent's
witnesses claimed that these matters had been discussed at
meetings with employees for months before the notice was
posted. To the extent questioned, General Counsel's
witnesses denied that these rules were discussed at
employee meetings, except that one witness recalled
discussions about side work.
It is clear that the Respondent had never previously
posted accumulated rules in the form posted after the
election. A discussion of these specific rules follows.
(a) Smoking: General Counsel's witnesses testified that,
prior to the posting of the rules, they were permitted to
smoke in various designated places in and about the
restaurant. Respondent's management agrees with this, but
asserted that Respondent desired to prohibit smoking in
the kitchen which was considered unhealthy and not
desirable for good food preparation. 2 The employees,
however, clearly understood that the new posted rule
forbade smoking anywhere in or about the restaurant,
employee Sallie Potts stating, "we weren't even supposed to
was that even Nyari and Finch, Respondent's management. smoked in the
kitchen.
139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
smoke in the ladies room really. .... We were not allowed
to smoke, period." According to Potts, whom I credit, after
the election and before the rules were posted, Nyari "told
us we weren't allowed to smoke anymore." Although Nyari
and the restaurant manager, Leon Finch, testified generally
that the posted rules did not change previous policies, and
Finch asserted that the rule was not intended to prohibit
smoking entirely, there is no evidence that Respondent
made any attempt to advise the employees that the posted
rule did not mean what it plainly stated.3 On the basis of
the evidence, I find that this rule constituted a change from
prior practice.
(b) Hair nets: It is clear that Respondent did not require
waitresses to wear hair nets prior to the union election.
Unlike the other asserted rules, it is not claimed that such a
rule has been previously posted at the restaurant. Respon-
dent does say that hair nets were "discussed" at employee
meetings in connection with Respondent's concern that the
employees be neat and that their hair be orderly. Nyari and
Finch testified that this matter was discussed after loose
hair was found in food, which Finch said probably
occurred in October or November 1975. However, I find,
as previously stated, Respondent did not require the
wearing of hair nets until the rule was posted after the
election. During the time immediately before the union
election, in January or February, according to Nyari, he
called the county health department, which he stated
informed him that the waitresses should wear hair nets.
(Nyari states that the country health department also told
him that the employees should not be permitted to smoke
in the kitchen.) However, Respondent Manager Finch
admits that, even after making it "a regulation to wear hair
nets," "[Respondent is] not carrying this through at the
moment because we found that the hair spray holding
relieves that situation."
As previously noted, after the close of the hearing,
Respondent requested that official notice be taken of
certain asserted rules and regulations of an agency of the
Commonwealth of Pennsylvania, in particular section
151.43 of those rules, which provides in part: "(b) Hair
nets, caps or other effective hair covering shall be used by
employees engaged in the preparation and service of food
or washing of utensils and equipment to keep hair from
food and food-contact surfaces," and "(c) Persons engaged
in the preparation, handling or service of food shall not use
tobacco in any form while in equipment and utensil
washing, food preparation or food serving areas. However,
designated locations in such areas may be approved by the
licensor for smoking, where no contamination hazards will
result."
These rules and regulations were either known to
Respondent, or could have been ascertained with the
exercise of due diligence prior to the hearing. The failure to
submit these matters at the hearing raises questions as to
the weight which should be given to them. If properly
presented at the hearing, the applicability of these provi-
sions, their proper interpretation, and the exceptions to
these provisions recognized by the authorities in day-to-
: Nyari, who was much given to long-winded, rambling, and largely
unresponsive answers, indicated that he had given instructions concerning
smoking in designated places and forbidding smoking in the kitchen, before
day enforcement could have been properly explored. As it
is, the record shows that Chez Odette operated for a
number of years in a manner which Respondent now says
was violative of these provisions even though it appears
there were periodic investigations of the restaurant by the
authorities. Even after promulgation of the rule requiring
hair nets, apparently in accord with the provisions set forth
above, Respondent admits that it is not in compliance with
its own rule. Whether its current practice conforms to the
state regulations is a question that could best have been
litigated at the hearing. In this state of the record I cannot
find that hair nets are required in restaurants in Pennsylva-
nia by state authorities. I find that Respondent's rule
requiring hair nets was a clear change from prior practice.
(c) Remaining at stations: Prior to the union election, the
waitresses and waiters were accustomed to sit at a table in a
particular area when there were no customers in the dining
room, or the restaurant was not busy. The employees might
use this time to fold napkins, or smoke at that place. On
occasion members of management have sat at the table
with such employees. Sallie Potts, one of the waitresses,
testified credibly that, on these occasions, she was never
warned for indulging in this practice, but "after the
election, we weren't allowed to sit there anymore." Potts
also claimed that the employees were not even permitted to
leave their stations to go to the bathroom without
obtaining a replacement as they were before the rule was
posted.
Manager Finch asserted merely that the rule both before
and after the union election was to the effect that the
employees were expected to "stand in a professional
manner on the station, and we constantly found them
smoking and slouching and sitting down. You'd come in
the room with customers; they'd all jump up." He states
this was discussed at employee meetings. Nyari claimed
that the posted rule made no change from the previous
practices. There was no specific evidence, however, that the
employees had previously been required to seek permission
to leave their assigned stations when the restaurant was not
busy.
On the basis of all the evidence, it is found that the
posted rule constituted a change from the prior practices.
(d) Personal appearance and side work: It seems agreed
that the various rules posted with respect to personal
appearance (except as to hair nets) were matters which
would reasonably be expected of waiters and waitresses,
but it is disputed as to whether these matters had been
previously posted in written form. Based upon consider-
ation of all the evidence, I find that they had not. I find
that notices with respect to side work had been previously
posted as separate matters.
(e) Other alleged restrictions: General Counsel's witnesses
testified that another principal change in their working
conditions after the union election was a rule prohibiting
the union election. My strong impression is that Nyari's testimony tended to
be overly exaggerated, imprecise, and not entirely consistent. I do not find
Nyari's testimony reliable.
140
NYARI ODEITE, INC.
them from drinking soda and coffee during working hours
as previously permitted. 4 Respondent agrees that employ-
ees were permitted to drink nonalcoholic beverages during
working hours, though not in places where customers were
served. In fact, Respondent previously permitted the
employees to get sodas from the bartender without charge.
Sallie Potts, however, testified that after the election, on
February 7, when she was drinking a soda in a hallway of
the restaurant, Nyari came by and "ripped" the soda out of
her hand, and "told me that we weren't allowed to have
anything-I couldn't have it-and we couldn't have
anything." Potts said, "Not even a drink of water?" to
which Nyari replied, "No, nothing."
Nyari asserted that on an occasion he did find Potts with
a drink in her hands at her work station, that he took it but
did not pull it from her hand, and that he tasted it and
found it to be alcoholic, whereupon he said to Potts, "I told
you before, no drinking on the job," and left to perform
other functions.
To the extent that these two versions of the incident
differ, I credit Potts. This being so, I find it unnecessary to
consider here the extensive testimony taken concerning
Respondent's asserted practices and problems with respect
to consumption of alcoholic beverages by employees.
It was also testified that, after the election, Respondent
instituted a practice of requiring the employees to leave the
premises immediately after work, and forbidding them to
congregate or talk in the hallways or on the floor while on
duty. Nyari asserted that a rule requiring the employees to
ring out their timecards and leave the premises after work
had been in effect for a long time.
Inasmuch as these two items were barely touched on in
the evidence, are not mentioned in the briefs, and would
not in any event require substantial change in the Order
recommended hereinafter, I find it unnecessary to pass
upon whether these matters constitute independent viola-
tions of the Act.
2. Other asserted harassment of employees
(a) Helen Orlando testified that on the evening of
February 7, the day of the election, Nyari took her aside
and told her to "start shak[ing] up these people because
they are lousy waiters and waitresses, I don't like the way
they work, and you better start to shake them up, they are
your crew, you better do something with them, they are
sloppy, they are not doing their jobs."5 This does not seem
to be denied. I credit Orlando. This matter was not alleged
as a specific violation of the Act.
(b) Also on the evening of February 7, Nyari called
Helen Orlando (who had been active on the Union's behalf
and was its observer at the election) and her husband into
his office, told them that Manager Finch had reported that
they had stolen food from the restaurant, and asked for
their resignations. Both employees denied the accusation
and refused to resign. According to the testimony of Helen
4 The witnesses, who had not been inside the restaurant since February
14. and had not seen the posted notice since that date, testified that this rule
was part of those posted. This was in error.
I At the hearing Respondent raised a claim that Orlando was a
supervisory employee. This will be considered hereinafter.
6 General Counsel asserts that in the 1O(j) proceeding Nyari testified that
Orlando, Nyari accused her of stealing "two steaks au
pouivres," and when she refused to resign "because I
haven't done anything," Nyari asserted that he would
proceed to ruin her reputation. This was not denied and is
credited. Helen Orlando in fact continued to be employed
until the incidents of February 14, related hereinafter. So
far as the record shows, Respondent's management had no
further conversation with her during this interval concern-
ing this matter.
The matter of the accusations against the Orlandos was
extensively litigated, particularly that against Helen Orlan-
do. The alleged incident in which she was involved (as well
as that involving her husband) occurred at least 2 weeks
before the union election, possibly longer. On this occa-
sion, Helen Orlando had ordered three steaks "au
pouivres" for a table in the bar area which seated two
persons. She states that the third steak was for the
bartender who she says was permitted to order from the
menu. Another employee, John Oliver, was carrying the
steaks into the bar area on a tray when Manager Finch
confronted Oliver and Orlando and accused them of
stealing the steaks. Orlando states that the two customers
for whom the steaks were ordered had left the table. Finch
asserts that Orlando offered to pay for the steaks, which
were returned to the kitchen, to which he replied that she
should "forget it," that the "damage was done."
Respondent's several contentions with respect to this
incident do not seem to bear analysis. There seems to be no
question that the incident occurred substantially as set
forth above. However, Respondent's contention that this
constitutes thievery would appear to be overblown. It is
obvious that there was no intent on the part of the
employees to take the steaks out of the restaurant. It must
then be assumed that Finch was complaining that the
employees intended to eat the steaks themselves. However,
in his testimony in another context, Nyari insisted that
Orlando had the privilege of ordering whatever food she
desired for herself, though he asserted that other employees
could not order steaks. 6 Assuming (without deciding) that
the bartender and Oliver were not entitled to order steaks
for themselves, at the most, therefore, Finch might have
considered Orlando delinquent in ordering steaks for them
when she should not have done so.
That this matter was not considered of great significance
is indicated by Respondent's actions in regard to the issue
prior to the election. Not only was Orlando not discharged
or otherwise reprimanded prior to the election, but there is
no evidence that the Respondent took any action at all
with respect to the bartender or Oliver. Both were still
employed until February 14. Indeed, according to Finch,
he did not even report this matter to Nyari until sometime
thereafter, he says about a week and a half before the
election. Notwithstanding a claim that Respondent was
experiencing a considerable problem with pilferage, Nyari
also took no action until, as noted, he asked for Orlando's
resignation after the election. Recognizing that this
Helen Orlando "could order what she liked," including steaks. I find that
Nyan testified to the same effect in the present hearing Since this is so, and
since I consider it unnecessary to refer to the transcnpt of that hearing to
adequately assess Nyari's credibility, I am denying General Counsel's
motion that I take notice of the transcript of that proceeding.
141
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct appears odd, in the circumstances, Nyari first
asserted that he did nothing because of a letter assertedly
received from the Union that he should not fire anyone
during the representation campaign. The record is convinc-
ing, however, that there was no such letter. Nyari and
Finch also asserted that they failed to act in this situation
because of general advice of their previous counsel that
they maintain the status quo and not fire anyone during the
election campaign, and that they did not bring this specific
problem to the attention of counsel. Considering Respon-
dent's asserted problem with pilferage, I find such position
difficult to believe, if, in fact, Respondent was truly
concerned about this incident. Lastly, Nyari offered no
explanation as to the reason he felt he was free to act after
the Union had won the election though fettered during the
period when the Union was seeking representation. When
Nyari brought up the issue with Union Representative
Clark immediately after the election, at a time the two were
casually discussing the resolution of problems by bargain-
ing, Clark cautioned Nyari against discharging employees
at that time, though agreeing that thievery should not be
condoned.
(c) During the union campaign Nyari embarrassed Helen
Orlando by calling her to answer some customers'
enquiries about the Union, asserting to them that she was
"a spokesman for the Union." Though this is alleged as
illegal interrogation, I find it is rather another instance of
harassment of employees because of the Union, which
violated Section 8(a)( ) of the Act.
3. Conclusions
The record as a whole and the discussions above are
convincing that, after the representation election, Respon-
dent engaged in a number of retaliatory moves against the
employees for voting for the Union. The timing of these
incidents is most significant. Immediately after the elec-
tion, Respondent's owner, Nyari, began to react harshly
toward the employees, indicating that working conditions
would be tightened, accusing one of the leaders in the
union campaign of misconduct in an occurrence which
took place weeks before, and upbraiding a waitress for
drinking soda in circumstances which had heretofore been
permitted.7 On the next working day, Nyari posted a set of
working rules in a form significantly different from
previous practice, several of which rules were new or more
restrictive than prior ones.
When questioned as to why he posted the rules at that
particular time, when he claimed to have been having these
problems for months, Nyari first asserted that "it was
about time the people started abiding by the rules . . ."
and then claimed that he had been prevented from posting
the rules by a letter received from the Union. However, the
records shows that he did not receive such a letter. When
asked a similar question, Respondent's manager, Finch,
claimed that the posting of the rules at this time "must have
been a coincidence."
I do not pass upon whether the rules, or the manner of
their presentation, would be reasonable in the operation of
7 Respondent, in its brief, argues that it is not reasonable to believe that
Nyari would have said the things which I have credited. However, I believe
that the testimony reveals an emotional reaction to the results of the
election, not necessarily a reasonable one.
Respondent's restaurant. The Act does not, of course,
prohibit an employer from effecting changes he normally
would make in employee working conditions simply
because his employees are engaged in an organizational
effort. But it does condemn as an unlawful restraint upon
employees' self-organizational rights "retaliatory changes
in working conditions" in response to their attempts to
secure union representation. See White Sulphur Springs
Company, d/b/a Greenbrier Hotel, 216 NLRB 721, 727
(1975), and cases cited.
On the basis of all the evidence, I am convinced and find
that Respondent would not have instituted the changes in
the rules found above, nor would they have been posted at
the time they were except for the fact that the employees
had selected the Union as their bargaining representative.
For the reasons stated, I find that Respondent, by posting,
on February 9, changes in work rules which forbade
smoking on the restaurant premises, and which required
the waitresses to wear hair nets and to remain at their
stations at all times during working hours unless permis-
sion was obtained, interfered with, restrained, and coerced
employees in the exercise of rights guaranteed under
Section 7 of the Act and thereby violated Section 8(a)(l) of
the Act.
C. The Termination of Besson
Charlotte Besson began working as a full-time hostess at
Chez Odette in 1973. In May 1975 she became a part-time
hostess, and thereafter, until February 14, she customarily
worked Saturday evenings and during lunchtimes as
required. It is admitted that Respondent was satisfied with
her work.
Besson signed a union authorization card during the
organizational campaign. She states that the employees
were aware that she supported the Union, and she voted
for the Union at the election.
On Friday, February 13, Nyari called Besson on the
phone and told her that, because business was slow and he
desired to economize, he would like Besson "not to come in
for a couple of Saturdays until business picks up," at which
time he said he would be happy to call her back again.
Besson indicated that she understood and that she would
await Nyari's call.
Nyari's initial recollection of this conversation, in
essence, conforms to the above. However, when thereafter
asked if "union activities or union affiliation" had come up
in that conversation, Nyari recalled that during the call
Besson expressed sympathy for him because of the union
situation and said that she was one of the employees who
had voted against the Union.8 He states that he assured her
that he accepted the employees' choice, that he only
wanted harmony and unity, and that 12 to 15 employees
had already told him that they had voted against the
Union.
On the following day, February 14, about 4:30 p.m.,
Besson took her daughter, Anne Besson, who was also
employed at the restaurant, to work. At that time Besson
talked with Manager Finch in the restaurant office. In the
I Besson denied that she told Nyari that she was one of the employees
who had voted against the Union.
142
NYARI ODETFE, INC.
course of their discussion about other matters, Finch told
Besson that he was surprised that she was not working that
evening since the restaurant had 300 reservations and
would be very busy.9 Besson replied that she had been told
not to come in because business was so slow.
In discussions thereafter with the other waitresses at the
restaurant that afternoon, Besson was questioned about
not working that evening. When she informed them that
she had been told not to come in to work, the waitresses
told her that she was being replaced by William Soriero,
who operated Respondent's parking lot (and the parking
lots of other restaurants in the area), and who occasionally
had assisted Chez Odette by serving as a host. After
observing Soriero working as host in the restaurant,'0
Besson again spoke to Finch, observing that she had been
replaced "very quickly." Finch advised Besson to "[j just let
it ride, don't say anything. I'll see you'll be back here."
Besson nevertheless thereafter called Nyari from her
home and accused him of not telling her the truth
concerning the reasons he had not permitted her to work,
that the restaurant had 300 reservations," and she
observed that she had been replaced by Soriero. Nyari
replied that it was "my business what I do with my
restaurant," that he liked Soriero and wished to give him a
job, and that the 300 reservations had come in during the
day on Saturday. Besson accused Nyari of firing her
because of the Union and said he could not do that without
a valid reason. Nyari replied, "Well, that's the way it goes,"
and told Besson that he now knew who the three employees
were who voted against the Union.
Nyari appears to deny that such a phone conversation
occurred (he denied a phone conversation with Besson on
February 14, but then vaguely added, "The other conversa-
tion must have been after that day").' 2 He asserts, rather,
that he had a casual conversation with Besson in the
restaurant when she brought her daughter in to work on
February 14, in which Besson noted that it looked as if
Respondent was "going to be busy," and readily agreed
that Pappas and Finch would be able to handle the
customers alone. Nyari further states that Besson did not in
this short conversation remonstrate with him concerning
his previous claim that he would not need her because
business was slow, but proceeded to the office to talk to
Finch. Besson, on her part, denied that she had a
conversation with Nyari in person in the restaurant that
day.
Respondent strongly disputes that the phone conversa-
tion, which Besson asserts occurred after she left the
restaurant on February 14, actually took place. The issue is
important in the resolution of the issues in this matter and I
have given it close attention.
It is claimed that Besson's credibility was destroyed by
her assertion in a written statement obtained from her by
9 The average number of reservations for a Saturday at that time of year
was between 150 and 200. The increase in business on February 14 was
attributed to the fact that this was Valentine's Day.
'° Soriero wore special clothing when he was working at the restaurant.
On the evening of February 14, the employees noted that Soriero was
dressed as a host. Soriero told Virginia Owens that he was working that
night. According to Orlando (denied by Soriero), Soriero had told her the
previous Monday that he would be working that Saturday night.
i" Besson, after talking with Finch, had personally checked the
reservation book.
Respondent's counsel that the "arrangement" between
Nyari and herself that she was not to work that Saturday
night had "nothing to do with the union." However, I was
impressed with her explanation that this referred to her
feelings when Nyari initially called her, before she
discovered that the restaurant was in fact busy that evening
and Soriero was working as a host. Her assertion that she
was upset and confused when she made the statement for
counsel is borne out by the circumstances in which she was
requested to give a statement and by inspection of the
statement itself which indicates, as she testified, that she
added the assertion in question while attempting to correct
other statements written in the statement by counsel.
Upon my observation of the witnesses and consideration
of the entire record, I credit Besson's testimony as to the
conversations set forth above. In addition to my conviction
that Nyari's testimony generally is not reliable, I believe
that Besson's testimony accords most nearly with the
probabilities of the situation. Soriero arrived at the
restaurant on February 14 about the same time as Besson,
if not before, and continued work as a host until the
walkout by the employees after 6 p.m. It is more than likely
that Besson saw Soriero there as she says she did. Certainly
the other employees saw Soriero and advised Besson that
Soriero was working in her place as she testified. I find it
quite improbable that Besson would not have brought this
up if she had talked to Nyari at the restaurant while she
was there (his testimony would indicate that he was there
approximately an hour and a quarter after Besson arrived
at 4:30 p.m.).'3 On the other hand I find it most probable
that Besson would remonstrate with Nyari concerning this
in the circumstances as she asserts she did.
In support of Respondent's contention that Nyari asked
Besson not to come in on February 14 because business
was slow, the record shows that restaurant business in the
area is normally diminished in January, February, and
March. Nyari testified that his auditor had suggested that
he make some economy moves and that this was one result
of that advice. Nyari asserts that he was unaware that
Valentine's Day was normally a busy day in the restaurant,
and that business increases when the occasion falls on a
Saturday, as in 1976. On the other hand, Nyari's testimony
shows that 150 reservations for Saturday night, an unusual
number, had been received prior to Saturday. Both Nyari
and Finch had commented to Virginia Owens during the
week that the restaurant "was going to be busy" on
Saturday. On Valentine's Day, Finch called Lorraine
Jackson, who was not scheduled to work, about 4 p.m., to
ask her to come in to work as a waitress.
12 General Counsel asserts that, in the 10(j) proceeding. Nyari "indicated
that such a phone conversation did, in fact, take place."
i3 Nyari says that about 3 p.m. he asked Soriero, in a phone call, to come
in as a favor to him to give him time to go and change his clothes,
presumably before the dinner hour. Soriero asserts that Nyari knew that
Soriero had to get back to his regular business. Nevertheless, though Soriero
arrived at the restaurant about 4:30 p.m., Nyari estimates that it might have
been as late as 5:45 p.m. before he left to change. Nyari states that he
returned to the restaurant about 6:30 p.m. that evening.
143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions
As noted, the General Counsel contends that Besson was
terminated because of her support of the Union and the
employees' selection of the Union as their representative.
Respondent contends that this was but one of several
economies Respondent undertook during the slow winter
season at the restaurant. However, this period of slow
business clearly began in January. No adequate reason was
advanced for making this move only after the representa-
tion election, in a context of other retaliatory activity.' 4
Furthermore, Nyari was aware by Friday, February 13,
that Saturday would be busy. An unusual number of
reservations for Saturday had already been received by
that time and both Nyari and Finch had commented to one
of the waitresses that Saturday would be busy. Indeed,
Finch expressed surprise that Nyari had told Besson not to
come in to work. During the course of the day on Saturday,
in fact, Finch called another waitress, Jackson, who was
not scheduled, to come in to work, and Nyari called
Soriero to come in to assist as a host. I do not credit the
testimony of Soriero and Nyari that the former was to
come in for only a short time that afternoon. The record
indicates the contrary. Soriero came dressed as a host. His
explanations-e.g., that he usually dressed this way just in
case his brother who operated a restaurant in New York
might need him-did not ring true.15 Though Soriero
asserted that he needed to get to his other business, and
came only to give Nyari time to change his clothes, Nyari
apparently made no effort to leave for this purpose for over
an hour after Soriero's arrival. Soriero further told Virginia
Owens that he was there to work the evening.' 6 Indeed, as
has been found, Nyari did not deny to Besson that Soriero
had been hired in her place, but rather indicated that her
accusation was correct.
Finally, when Besson complained to Nyari that he had
replaced her with Soriero and accused him of having an
antiunion motive, his reply was not one of denial, but one
of indifference, indicating that he knew Besson was not one
of the employees who had voted against the Union.
On the basis of the above and the entire record, it is
found that Respondent terminated or laid off Besson on
February 14 because of her support of the Union and
because the employees had selected the Union as their
bargaining representative, and thereby violated Section
8(a)(l) and (3) of the Act.
D. The Work Stoppage
There is some dispute as to the events on February 14
leading up to the walkout of the employees. It is
unnecessary to set out all of these incidents in detail. I find
" Respondent, as noted previously, asserted that it could take no action
because of an alleged letter from the Union requiring it to maintain the
status quo, but Respondent received no such letter.
1s Soriero's connection with Respondent was more than casual. He had
an office in the restaurant premises. In fact, though he was not then an
employee of Respondent, he attempted to vote in the representation election
because he considered his interests were affected. Soriero's testimony as to
how he came to the conclusion that he should vote in the election was quite
implausible.
HI I find it unnecessary to resolve the conflict between Orlando and
Soriero as to whether the latter told Orlando earlier in the week that he was
going to be working as a host on Saturday. February 14.
the following: The employees were accustomed to finding
the schedule of their work assignments for the following
week posted by 5:30 p.m., or earlier, on Saturday
afternoon. The schedule was not posted by that time on
February 14. Based on their knowledge of the recent
discharge of a busboy named Lee,17 and the apparent
termination of Besson that evening, against the back-
ground of other Respondent actions since the election set
forth above, the employees became apprehensive of their
own job security when the schedule was not posted. The
employees made this known to Finch and to Nyari. These
two sought to assure the employees that their names would
be on the work schedule for the next week. The record as a
whole, including the testimony of Respondent's witness
Lorraine Jackson, makes it plain that the employees had
decided to leave as a group in protest of Respondent's
actions. Jackson informed Nyari of this. Nyari and the
employees had a further discussion in the kitchen before
they left the building, in which Nyari told the employees
that the schedule was not prepared and would be posted
when Nyari was ready, that "it was his restaurant and he
would run it the way he wanted to, and since [the
employees] didn't like it [they] could get out." 18
Respondent's witnesses assert that the employees as a
group, and Orlando individually, stated that they were
resigning or quitting. The employees who testified, includ-
ing Orlando, denied this. While it is probable that the
employees, or some of them, made some comment that
they were leaving, or would not work that evening, I find
that the employees did not state that they were quitting
their employment or resigning. The employees' expressed
concern over losing their jobs, as well as their subsequent
conduct, is inconsistent with an intent to sever their
employment with Respondent.
After Nyari told the employees to leave, almost all of the
employees left and assembled on the parking lot.' 9 Nyari
followed the employees into the parking lot and asked
them to return to work. The employees said that they
would return to work if he would agree to take Besson and
Lee back. Nyari said that he was unaware that Lee had
been fired and that Besson had not been fired, but that he
would not make any concessions to the employees with
respect to the employment of Lee or Besson. Nyari blamed
the Union for what was happening and offered to discuss
increased benefits with the employees if they would return
to work. When the employees did not respond to these
overtures, Nyari told them to leave his property and never
set foot on Respondent's property again, either as a
customer or a worker.
The employees thereafter called James J. Clark, presi-
dent of the Union, and informed him of their actions. The
1? Lee had been discharged after the election in circumstances which
seemed unfair to the employees. Lee had been prounion. However, it is not
claimed that Lee's discharge violated the Act.
"I It is noted that Nyari used similar language to Besson when she called
to protest the hiring of Soriero to replace her.
19 The record shows that the following employees left work and
assembled on the parking lot at that time: Helen Orlando, Anthony
Orlando, Virginia Owens, Michele Owens, Maia Deem, Marie Deem, John
R. Oliver, Sallie Potts, Sallie Jean Potts, Anne Besson, Deborah Deem,
Judith Ott, John Owens, and Peter Cruice. General Counsel states that
Melissa Owens also walked out with the others. If so, this may be
established in a compliance hearing, if necessary.
144
NYARI ODEITE, INC.
following Monday morning the employees established a
picket line at the restaurant which continued to the time of
the hearing.
Conclusions
As noted, on the evening of February 14, 14 or more
employees concertedly left work in protest of Respondent's
termination of Besson and Lee, and because of their
anxiety over their job security. Respondent contends that
the employees thereby quit, intending to sever their
employment permanently. As previously noted, I find this
inconsistent with the employees' anxiety over their own job
security, expressed to Respondent, which immediately
preceded their concerted action. While it is possible that so
large a group might agree simultaneously to sever their
employment permanently, such action is not normal.
Where such mass leaving of employment occurs, it is
usually in protest of some action (or inaction) of the
employer with respect to the employees' working condi-
tions. The essence of such protest is that the employees
want to be employed, albeit under changed conditions, not
that they desire to permanently leave their employment.
See, e.g., Grismas Corporation, 205 NLRB 1108, 1118
(1973), and cases cited. The evidence in this matter
supports such a conclusion here. Thus, the record shows
that the employees wanted to continue their employment,
but wanted Respondent to take steps, including the
reinstatement of Besson, that they considered would
reinforce the security of their own employment. This is
further shown by the fact that the employees turned for
help to their bargaining agent, informing representatives of
the Union of their reasons for walking out, and by the fact
that the employees set up a picket line on the next working
day which they have since maintained to the date of the
hearing in this matter. These actions are consistent with a
strike over working conditions, not a severance of employ-
ment. I find that, by concertedly leaving their employment
on the evening of February 14, the employees engaged in a
strike over working conditions protected by Section 7 of
the Act.
Since an object of the employees' strike was to protest
the discriminatory termination of Besson and to seek her
reinstatement, I find that the employees were engaged in
an unfair labor practice strike.
As has been noted, when the employees left work, and
Respondent was unable to persuade them to return except
by conceding to their demands, Respondent brusquely told
the employees to leave and under no circumstances return
to Respondent's restaurant, even as customers. The normal
inference to be drawn from this is that Respondent was
thereby discharging the employees because of their con-
certed action. I so find. See R & S Steel Corp., 222 NLRB
69 (1976). It is therefore found that Respondent, by
discharging the employees who were engaged in the work
stoppage, which was protected under the Act, violated
Section 8(a)(1) of the Act, and thereby aggravated and
prolonged the strike, reinforcing its character as an unfair
labor practice strike. See Astro Electronics, Inc., 188 NLRB
20 It is admitted that the Union was certified on February 17, in the
following unit: "All dining room, bar, kitchen employees, hostesses and hat
check employees employed by Respondent at its New Hope, Pennsylvania,
572 (1971). I find it unnecessary to pass upon General
Counsel's contention that the discharges of the strikers also
violated Section 8(aX3) of the Act.
Thereafter, when Charlotte Besson declined to accept
Respondent's offer to return to work on May 29, 1976,
because Respondent's dispute with the strikers had not
been settled, Besson joined the strike and became an unfair
labor practice striker herself.
E. The Refusal To Bargain
1. The requests and refusal
Beginning on or about February 18, after the Union had
been certified by the Board as the bargaining representa-
tive of Respondent's employees in an appropriate bargain-
ing unit 20, the Union made several requests of Respondent
to meet and bargain for a contract. Apparently at the
request of Respondent, the Union sent Respondent a copy
of its initial bargaining demands. Two or three dates for
bargaining negotiations were set, apparently through the
efforts of a Federal mediator brought into the matter by
the Union. Respondent has not met any of the dates set for
negotiations and has refused to negotiate with the Union.
Nyari testified that Respondent's present counsel, then
newly hired to replace prior counsel, advised him that he
"wouldn't handle" [the negotiations then set] because he
had not had sufficient opportunity to prepare, and
thereafter advised Nyari not to bargain with the Union
because of asserted "mass picketing" and then because the
Union assertedly had more than three pickets on the picket
line in violation of the Union's agreement to an injunction
limiting picketing to three picketers at a time.
2. The picketing
The employees began picketing Chez Odette on Febru-
ary 16, apparently close to the point where the driveway
leading to the restaurant intersects a main road. Respon-
dent's witnesses indicated in their testimony that this was a
dangerous place to picket because it tended to obstruct
cars turning off the highway, but there is no evidence that
Respondent made objections to the place of picketing at
the time, or suggested another place, or that Respondent
sought to have this corrected in the injunction proceedings
which it instituted.
Prior to the issuance of the injunction, on March I i, it is
admitted that from time to time as many as six to eight
pickets were on the picket line at one time. Nyari claims
that there were as many as 8 to 10, asserting that the
pickets "paraded back and forth, blocking our entrance,"
and that "we had pickets constantly ... we had as high as,
they were walking across, 8 to 10, they had lunch boxes,
they had lawn chairs, they were sitting there having a good
old time; they brought their grandchildren; they were
parading in front of the cars; they stood in front of people's
cars." As a result of the picketing, some customers and
delivery vehicles were turned away. However, the restau-
rant continued to operate, deliveries were obtained, with
facility, but excluding all other employees, guards and supervisors as
defined in the Act."
145
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some difficulty, nonstriking and new employees continued
to cross the picket line and come to work, and some
customers continued to patronize the restaurant. Nyari and
Finch referred to at least one customer or group of
customers whom they described as being frightened at the
experience of crossing the picket line. Nyari and Finch also
referred to certain statements made to them by customers
and others about conduct of pickets. These are hearsay as
to the conduct alleged and have been given no weight as to
the truth of the contents of the statements, but have been
fully considered as statements received by these witnesses.
Striking employees called as witnesses by General
Counsel admitted picketing across the driveway to Respon-
dent's restaurant, but denied deliberately or intentionally
obstructing the passage of vehicles seeking ingress or
egress. They testified that immediately prior to the
injunction they were directed by the Union to limit the
number of pickets to three and thereafter did so. These
witnesses stated that at times when the pickets changed
shifts, however, there were more than three pickets in the
vicinity of the picket line as the shift changed. On the other
hand, Respondent's witnesses testified to occasions on
which there were more than three pickets in the vicinity of
the picket line.2' These witnesses asserted generally that
the circumstances of the picketing with respect to obstruc-
tion of vehicles and turning away cars and trucks were
much the same after the injunction as before. Respondent
called the police and the sheriff's office on several
occasions, but no arrests of pickets was made. Though
there is some reference to an amendment to the injunction,
it appears that no picket has been found in contempt of the
injunction.
Respondent's witnesses referred to the following inci-
dents assertedly occurring on or about the picket line:
(I) Victor Vega, Respondent's head chef, testified that,
on the evening of February 16, as he was leaving work, he
stopped his car at the end of Respondent's driveway
briefly, preparatory to entering the main road. At that
point, Vega says, the pickets started calling him names and
"banged on the car." On cross-examination, he identified
the pickets as John Owens and Peter Cruice. He states that
John Owens said, after a vulgar reference to Vega, "we're
going to get you." Vega drove on. Vega asserts that
thereafter, as the days went by, he and the pickets became
friendly and engaged in conversation, and he did small
favors for them. Notwithstanding this, Vega says that in
April, when he indicated to Cruice that if he had to he
would give an affidavit against the pickets, Cruice replied,
"Well, it's all right, we've got your number. We're going to
get you." Vega states that he responded, "Pete, don't say
anything. Just do whatever you want to do, but don't say
anything," and told Cruice that "I just work for a living
and I'm going to continue."
John Owens denied pounding on Vega's car or speaking
to him as he crossed the picket line. Cruice denied seeing
anyone pound on Vega's car and states that he said only
something to the effect of "Thanks a lot, Victor, for going
21 From Nyari's testimony it would appear that these occasions included
instances when "the ones who went off duty would stand there and would
talk and they would have little powwows." It is also noted that Nyan and
Finch in their testimony at times seemed to include persons completely
across the road from the picket line, even those sitting in their cars, as
exceeding the permissible number of pickets.
in to work." Both Cruice and Sallie Potts assert that, on the
evening of February 16, Nyari closely preceded Vega
across the line, to assist him in leaving. Potts states that she
called Vega a "fink," and other pickets "hollered back and
forth to each other." She says she was close to Vega's car
and saw no one touch it. Peter Cruice also denies that any
picket touched Vega's car.
While I have some concern about the reliability of Vega's
testimony generally,22 I believe it unnecessary for the most
part to determine his credibility in respect to the above
incidents. With respect to the alleged "banging" on Vega's
car, other than the pejorative description there is no other
indication of what occurred. There is no claim of actual
damage. Assuming that it occurred, the incident would
appear to have been momentary. As to the two alleged
threats, I find that Vega was mistaken in attributing a
threat on February 14 to Owens. I credit his testimony
concerning the statement made by Cruice. In considering
Vega's testimony as a whole, he does not seem to have been
seriously affrighted by his experiences at the picket line,
though he was clearly concerned and upset at crossing the
picket line on the evening of February 16. However, he
thereafter resumed quite friendly relations with the pickets,
while crossing the picket line apparently on each workday,
and by his retort to Cruice indicated that he rather thought
the latter's threatening language was not serious. In fact,
nothing further happened to Vega, not even a repetition of
the asserted banging on his car.
(2) Lorraine Jackson, a waitress who did not walk out
with the others and who worked during the strike, recalled
an incident "in the first few days" of the strike, lasting less
than a minute, in which "people walked in front of my
car," and she was momentarily stopped. John Owens
shouted, "How do you feel, Lorraine?" Jackson says this
made her feel "very bad." She states, however, that the
pickets made no threat to her. Owens denied saying
anything to Jackson. I find it unnecessary to resolve the
conflict.
(3) There was much testimony concerning an incident in
which John Owens fell in the driveway as Nyari was
pulling his car into the drive leading to the restaurant.
Nyari states that, on an occasion when he turned into the
driveway going to the restaurant, Owens and Cruice "and
some others were parading in front of the driveway, just
kind of crawling going by; and when I pulled in with my
car they stopped; I slammed on the brakes and stopped the
car; I didn't slam them on, I was only going real slow
pulling in; and [Owens] faked a fall right in front of the
car. And, at this point he got up and hollered ... ,'He hit
me, he hit me; I'm suing, I'm suing;' and [Owens and
Cruice] started pounding on my car . . . and they all
started screaming obscenities." Nyari identified Sallie Jean
Potts as being there at the time. When Owens got off the
ground, Nyari proceeded up the drive to the restaurant.
Both Owens and Cruice recall that Nyari was driving too
fast in the circumstances, and that his brakes screeched as
he jammed them on. Owens states that the car thereupon
22 For example, he testified at some length about the contents of rules in
notices assertedly posted in the restaurant, addressed to the waiters and
waitresses and certainly written in English, though he admitted he could not
read English and the notices were not of concern to him.
146
NYARI ODETrE, INC.
"drifted" into him and he fell, Owens and Cruice assert
that Owens questioned whether Nyari was crazy and was
trying to kill him. Both Cruice and Owens testified that
Nyari made an offensive gesture to Owens. Nyari asserted
that, on another occasion, Owens made a similar gesture to
him.2 3 Sallie Potts denied that she was present when John
Owens fell before Nyari's car.
I believe that Nyari was indeed traveling too fast in the
circumstances and had to slam on his brakes (as he himself
initially testified), and his vehicle did come into contact
with Owens on this occasion. The extent to which this
impelled Owens to the ground is not important. The
incident was over quickly and Nyari was not substantially
impeded. I credit Owens and Cruice that Nyari sped very
quickly into the parking area after Owens got up and
upbraided Nyari for hitting him. It is therefore apparent
that the alleged "pounding" on Nyari's car could have
been momentary, in response to the incident. It is not
alleged that any damage occurred.
(4) Ann Pappas, a member of Respondent's manage-
ment, testified that upon arrival at the drive leading to the
restaurant, on March 5, she observed a car being turned
away by eight pickets (four union men and John Owens,
Cruice, Sallie Jean, and Michele Owens). She states that
she was blocked from entering by the pickets and as she
started "inching" her way into the driveway, John Owens
stood in front of her car and would not move, that when
she continued Owens fell in front of her car, "[a]nd
everybody started pounding on my car and cursing and
swearing," and that Owens then got up and banged on the
window on the driver's side of her car. Pappas continued
on, parked her car, and went into the restaurant where she
called the police. Manager Finch stated that he saw Pappas
inching her way into the driveway and saw Owens
"dramatically in slow motion" fall to the ground in front of
the car.
John Owens was not asked about the incident. Cruice
testified that Pappas "swiped" his leg on one occasion
"because she generally came into the driveway very
quickly. Very seldom did she slow up or put a turn signal
on."
(5) On the same day as the above, Pappas says that she
noted that a young man employed by Respondent to direct
traffic into the restaurant was not doing so, so she went
outside to wave traffic in. She stated that Cruice and John
Owens crowded her, preventing her from waving cars into
the restaurant, so that she pushed them aside, whereupon
she asserts Cruice said he would "punch [her] in the
mouth." Nyari came up soon thereafter and Pappas went
into the restaurant with him.
Cruice states that on this occasion he was walking the
picket line one day when Pappas pushed him, telling him
that he had to "[h]urry up," that he "just got to keep
moving, can't stop or anything." Cruice says he told
Pappas that, if she pushed him again, he was "going to slap
you in the eye," to which he states Pappas replied that he
was "lucky you're alive." Later, on this occasion, or
another, Nyari approached Cruice and referred to him by a
vulgar epithet as "trash" and a "cheap bum."
23 Owens stated that, on the first day of the picketing, Nyari shook his
fist at Owens and indicated that he wanted to fight Owens. In a subsequent
(6) Respondent's witnesses also stated that various cars,
trucks, and on one occasion a bus were turned away by
pickets walking or standing in front of the vehicle and
talking to the driver. However, such conversations between
pickets and drivers as the witnesses heard were in the
nature of persuasion of the driver not to come into the
restaurant. On one occasion, according to Nyari, he was
able to persuade a busload of union members (who had
arranged to have dinner at Chez Odette) to cross the picket
line and come into the restaurant.
(7) Manager Finch testified that on one occasion when
he was attempting to take pictures of the picket line, "I was
confronted by John Owens who was carrying a picket
sign.... As I turned to walk down back toward the
restaurant, he followed me down perhaps fifteen yards; he
said, 'Finch, we are going to jump some night in the alley
and beat your head in,' and I turned, I just looked at him; I
didn't think enough of it to lower myself to say anything in
rebuttal."
Nyari asserted that, in the course of several vulgar
obscenities, John Owens also told him, "You'll get yours,
you .... " Nyari claimed that the pickets had "cards"
which said "Nyari, you'll get yours." He also objected to
instances of levity on the picket line, in which the pickets
kicked up their legs, stuck their tongues out, and the like,
which he referred to as "funnies." John Owens did not
deny the statements attributed to him by Nyari or Finch
set forth in this subsection.
3. Conclusions
Respondent argues that it was justified in refusing to
bargain with the Union because, it asserts, (1) "fifteen
[employees] in a unit of approximately twenty four" quit
Respondent's employment 7 days after the election, and
the replacements hired thereafter do not want to be
represented by the Union; (2) the employees "engaged in
mass picketing"; (3) the employees "threatened and
coerced their replacements and those who did not quit";
and (4) the employees "violated the terms of a state court
injunction."
However, as has been found, the employees involved did
not voluntarily sever their employment with Respondent,
but were discharged for engaging in an unfair labor
practice strike in protest of Respondent's activities which
were violative of the Act. In these circumstances, they
remained employees of Respondent within the meaning of
the Act.
Respondent concedes that the Supreme Court in Ray
Brooks v. N.LR.B., 348 U.S. 96 (1954), confirmed the
Board's position that an employer is normally obligated to
bargain with a certified union for a year following
certification "absent unusual circumstances," but argues
that such unusual circumstances obtain here. I find this
argument to be without merit.
The fact that the striking employees may have been
replaced during the period following their designation of
the Union as their bargaining representative (I find it
unnecessary to pass upon this issue) would not in the
incident involving Ann Pappas. a management employee. Cruice testified
that Nyari invited him to fight. Nyan denies both of these incidents.
147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
circumstances of this case provide support for Respon-
dent's refusal to bargain with the Union. See, e.g., N.L.R.B.
v. Alva Allen Industries, Inc., 369 F.2d 310, 320 (C.A. 8,
1966) "[T]he permanent replacement of economic strikers
is not an 'unusual circumstance' that would justify a refusal
to bargain in good faith with the Union during the
certification year." 24
The evidence in this case would justify the finding that
the employees on occasion momentarily obstructed the
ingress, and perhaps the egress, of vehicles attempting to
enter and leave the Respondent's premises by picketing
across the road leading to Respondent's restaurant. There
is no evidence that any person was actually prevented by
improper means from coming in or leaving. There is no
probative evidence that any customer or supplier was
unlawfully induced not to trade with Respondent. In fact,
the restaurant continued to operate. Customers, employees,
and suppliers did cross the picket line. To this extent, the
evidence submitted is compatible with the normal incidents
attendant upon the maintenance of a picket line. In
addition, there was evidence of use of some foul language
by the pickets and on occasion by management; there were
claims that the pickets momentarily pounded or banged on
vehicles driven by employee Vega, and management
personnel Nyari and Pappas, each on a single occasion, but
no claim that this resulted in any damage to property; and
evidence that pickets said to Vega, "We're going to get
you," on two occasions; told Nyari that "you'll get yours;"
and said to Finch that pickets would jump him in an alley
some night and "beat [his] head in." One picket, who was
pushed by Pappas, offered to hit her if she did that again.
Up to the time of the hearing, about 4 months after the
beginning of the strike, so far as this record shows, no one
has been assaulted or hurt.
Respondent relies heavily to support its refusal to
bargain on the allegation that, after March 11, the pickets
violated a state court injunction limiting pickets to three.
As previously noted, I find this contention without merit.
What Respondent is asking me to do here is determine
whether the injunction was violated. This is not the proper
forum to determine that matter. That issue should have
been presented to the state court, but Respondent did not
do that. Indeed, since the injunction was not offered in
evidence, and I am unaware of its specific terms, I am in no
position to determine whether the injunction was in fact
violated. For example, Respondent has proved that more
than three pickets were in the vicinity of Respondent's
restaurant on occasions after March I , but not necessarily
that more than three pickets were parading across the road
leading to Respondent's restaurant at any one time, and
certainly has not shown that persons desiring to enter
Respondent's premises were actually prevented from
entering or leaving by the massing of pickets numbering
more than three. Whether or not this constituted a
violation of the injunction is a matter for the state court.
On the basis of the above, and the record as a whole, and
giving due consideration to the fact that the strike and
14 Globe Automatic Sprinkler Company of Pennsylvania v. N.L.R.B., 199
F.2d 64 (C.A. 3. 1952). relied on by Respondent is readily distinguishable. In
that case the court noted that the employer had actually bargained in good
faith for almost a year, and the Union's loss of representative status was not
attributable in any way to activities of the employer, which is not the
picketing were caused and prolonged by Respondent's own
unfair labor practices, I find that the picket line incidents
set forth did not rise to a level which justified Respondent
in refusing to recognize and bargain with the Union. See,
e.g., Daniel A. Donovan, et. al., d/b/a New Fairview Hall
Convalascent Home, 206 NLRB 688 (1973), and cases cited.
See also N.L.R.B. v. Ramona's Mexican Food Products, Inc.,
531 F.2d 390 (C.A. 9, 1975). Indeed, by refusing to bargain
with the Union in the circumstances Respondent rejected
the very device which the law commands as the proper
procedure for settlement of disputes such as occurred here
and thereby aggravated the situation about which it now
complains.
Upon consideration of the above and the entire record, I
find that Respondent, by refusing to bargain with the
Union and instituting unilateral changes in employee
working conditions after the employees had selected the
Union as their bargaining representative, violated Section
8(a)(5) and (I) of the Act.
F. Supervisory Status of Helen Orlando
I. The facts
At times material herein, Respondent employed approxi-
mately 18 employees including Helen Orlando in a unit
which included kitchen help. The acknowledged supervi-
sors over this unit were Nyari, the owner, Finch, the
manager, and Ann Pappas, a hostess-supervisor, who-
Nyari stated-"goes around making sure that the people
who are supposed to be doing their work do their work,"
and who reports any delinquencies observed. The record is
not clear whether Victor Vega, the head chef, has
supervisory authority over the kitchen help.
Helen Orlando was employed by Odette as head waitress
when Odette operated Chez Odette. According to Nyari
this was based on the "experience that she had gathered
over the years," and the facts that "she knew everybody in
the area" and was aware of persons available to work.
Orlando was continued in this position after Nyari took
over the operation of the restaurant.
Although Orlando appears to have been quite active in
the union organizational campaign at the restaurant,
served as an observer for the Union at the election, and
voted in the election, Respondent raised no issue as to her
asserted supervisory status at the time. The matter was first
raised, it appears as a matter of happenstance, during the
course of the hearing in this matter.
In support of Respondent's position that Orlando was a
supervisor over the waiters and waitresses, Nyari testified,
"Helen virtually ran the restaurant. Helen had full
authority to do all the hiring of the staff, with the exception
of the kitchen," and "she ran that whole restaurant.
Whatever she said was the law and she was like a dictator
in the place." Nyari asserted that Orlando "was in charge
of the hiring, firing and training of the waiters, waitresses
and bus help, doing all the scheduling." With respect to the
situation here. In any event, Globe was decided before the Supreme Court's
decision in Brooks and has been distinguished by other courts on that basis.
See Kenneth B. McLean, d/b/a Ken's Building Supplies v. N. L R.B., 333 F.2d
84, 88-89 (C.A. 6, 1964); N.LR.B. v. Holly-General Company, Division of
Siegler Corporation, 305 F.2d 670. 672-674 (C.A 9. 1962).
148
NYARI ODETTE, INC.
weekly scheduling of work, Nyari agreed that this was for
the most part repetitive and unvarying (though he says he
desired more change). Orlando was paid an extra amount
for preparing this schedule each week. However, this
perquisite was taken away from her before the election (as
part of Respondent's economy moves, Nyari says) and
Manager Finch was thereafter designated to prepare the
schedules.
Nyari agreed that Orlando was assigned to a work
station as were the other waiters and waitresses and worked
a full schedule as a waitress but, Nyari says, "was supposed
to spend her time training people, making sure that the
work was done, checking on phones, in addition to being a
waitress." However, aside from an extra stipend for making
out schedules (which ceased before the election), Orlando
received the same wages and benefits as the other waiters
and waitresses.2 5
The record shows that, during the period after Nyari
took over the operation of Chez Odette, two or three new
employees were hired: Peter Cruice, whom Nyari hired and
brought into the restaurant (Nyari insists he had to
persuade Orlando to give him a trial), and John Owens, the
bartender who was also hired by Nyari. In addition,
Melissa Owens was apparently recommended by Orlando
for hire and was employed. Nyari also testified that certain
temporary summer help was employed by Orlando. About
the time Nyari began operating the restaruant, Sallie Jean
Potts, who had previously been employed as a bus girl by
Odette, was promoted by the then manager of the
restaurant to waitress on the recommendation of Orlando
that Sallie Jean Potts was familiar with the restaurant and
there was need for a waitress.
Orlando agreed that, when training was required, she
trained new waiters and waitresses, but asserted that this
had not been required since Nyari took over. Orlando also
agreed that she made recommendations as to the hire or
discharge of employees, but denied that she could take
such action without the authorization of management. She
testified that her recommendations were "sometimes"
followed. Nyari's testimony is to the contrary, as indicated
above. I credit Orlando. There is no specific evidence as to
any action taken by Orlando with respect to discipline of
employees or action affecting any other working condition
of the employees.
After Respondent took scheduling duties away from
Orlando, she worked only as a waitress, with no other
responsibilities. After that time it appears that she played
no role in the hiring, discharge, scheduling, or discipline of
employees.
2. Conclusions
This issue, which was raised and much litigated by
Respondent, is not discussed in its brief. It has nevertheless
been considered at length because it affects Helen
Orlando's asserted rights under the Act.
The facts stated above and the record as a whole strongly
indicate that prior to the time Orlando was relieved of her
25 I do not credit Nyari's testimony that Orlando would have participat-
ed in the profit-sharing plan which he was setting up for management
people, if there had been a profit, and that Orlando knew this.
26 I have also considered Nyari's claim that Orlando hired two summer
duties of making out working schedules (prior to the
election) she may have been a working leader, but she was
not a supervisor within the meaning of the Act. The facts
are convincing that, after she was relieved of her sched-
uling duties, and certainly by February 14, Orlando was
not a supervisor, and was not considered a statutory
supervisor.
In the first instance, I am unwilling to rely on Nyari's
testimony which strongly impressed me as emotional,
exaggerated, and overblown. Thus his claim that Orlando
ran-or virtually ran-the restaurant and that what she
said "was the law" does not comport with the fact that the
Respondent previously did not claim that she was a
supervisor during the representation proceeding, nor
dispute Orlando's eligibility to vote in the election or act as
an observer for the Union. Nor does it comport with the
fact that Respondent had three active supervisors, Nyari,
Finch, and Pappas, on the premises to oversee the
operations of the restaurant and supervise the fewer than
18 waiters and waitresses employed, a ratio of supervisors
to unit employees that tends to militate against the need for
a fourth supervisor over the waiters and waitresses.
Respondent does seem to have relied to a considerable
extent on Orlando's knowledge of the labor pool in the area
of employment of personnel. However, even so, it appears
that her recommendations were not necessarily followed.
Indeed, the record indicates that Orlando had limited
occasion to perform this service for Respondent. Of three
new full-time employees hired only one was recommended
by Orlando, the others were hired by Nyari. One bus girl
recommended by Orlando was made a waitress.2 6 There is
no credible evidence that Orlando played any significant
role in the discharge of employees. She had no part in the
termination of the two unit employees referred to in the
record (Lee and Besson). There is further no evidence that
Orlando was involved in specific instances of discipline or
direction of employees in their work which might have
been expected of a first-line supervisor. She did make up
working schedules which the record shows were largely
routine. Finally, Orlando worked full time as a waitress for
Respondent, was paid the same as other waitresses (except
for $25 weekly for preparing the schedules), and had the
same benefits.
These considerations, and the entire record, are convinc-
ing that Orlando, at the most, was a working group leader
prior to the time before the election when she was advised
that she would no longer be making up work schedules.
After that time, Orlando had no duties or responsibilities
which distinguished her from the other waitresses. In any
event, it is inconceivable that Respondent, after accusing
her of theft on February 7 and asking for her resignation,
should claim that she acted for Respondent as a supervisor
thereafter.
For the reasons stated I find that, at times material
herein, Helen Orlando was not a supervisor within the
meaning of Section 2(1 1) of the Act.
seasonal helpers. Because of my lack of confidence in his testimony and lack
of supporting detail, I do not give this much weight. I assume she played
part in the employment of such help, but I am not sure what it might have
been.
149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act and was, at all material
times, and continues to be the exclusive representative of
Respondent's employees in the appropriate unit set forth
below for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
3. The bargaining unit set forth and described herein-
above in footnote 20 constitutes an appropriate unit for the
purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
4. By failing and refusing to bargain in good faith with
the Union in the above-described unit, and by unilaterally
changing the working conditions of its employees in that
unit without affording the Union an adequate opportunity
to bargain with it concerning such changes, Respondent
has engaged, and is engaging in, unfair labor practices in
violation of Section 8(a)(5) and (1) of the Act.
5. By changing its work rules, and making them more
stringent and less permissive, and by otherwise harassing
its employees, in retaliation against its employees' selection
of the Union as their exclusive bargaining representative,
Respondent engaged in unfair labor practices in violation
of Section 8(a)(1) of the Act.
6. By laying off or terminating Charlotte Besson on
February 14, 1976, because of her support for the Union,
Respondent engaged in unfair labor practices in violation
of Section 8(a)(3) and (1) of the Act.
7. By discharging, on February 14, 1976, employees in
the appropriate unit, including Helen Orlando, Anthony
Orlando, Virginia Owens, Michele Owens, Marie Deem,
Maia Deem, John R. Oliver, Sallie Potts, Sallie Jean Potts,
Anne Besson, Deborah Deem, Judith Ott, John Owens,
and Peter Cruice, who were engaged in a concerted work
stoppage caused by Respondent's unfair labor practices,
Respondent interfered with, restrained, and coerced its
employees in the exercise of rights protected by the Act,
and prolonged the said unfair labor practice strike, thereby
engaging in unfair labor practices in violation of Section
8(a)(1) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
9. Respondent did not engage in interrogation of
employees concerning their union activities as alleged.
THE REMEDY
It having been found that the Respondent has engaged in
unfair labor practices in violation of Section 8(aX)(1), (3),
and (5) of the Act, it will be recommended that Respon-
dent cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that Respondent unlawfully terminat-
ed or laid off Charlotte Besson on February 14, 1976, but
offered to reinstate her as of May 29, 1976, which offer she
refused, electing to join the strike of the other employees
until their dispute with Respondent had been settled. It will
therefore be recommended that Respondent make Char-
lotte Besson whole for any loss of pay or other benefits she
may have suffered from the date of the discrimination
against her to May 29, 1976, less her net earnings during
that period, in accordance with the Board's formula as set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest thereon at the rate of 6 percent per annum, as
set forth in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
It is established Board policy not to provide backpay for
strikers, even though they may have been discharged by
their employer in violation of the Act. See Kellstone, Inc.,
206 NLRB 156 (1973); Astro Electronics, Inc., supra. It will
therefore be recommended that Respondent offer to each
striking employee, including Charlotte Besson, upon his or
her unconditional application for reinstatement, immediate
and full reinstatement to the striking employee's former job
or, if such job no longer exists, to a substantially equivalent
position without prejudice to his or her seniority or other
rights and privileges, dismissing if necessary any employee
hired since 6 p.m., February 14, 1976, to replace such
striking employee. If, after such dismissal, there are not
sufficient positions available for all the strikers, Respon-
dent shall place their names on a preferential hiring list for
employment in suitable new openings in preference to new
applicants.
Respondent shall also make whole those employees
entitled to reinstatement for any loss of earnings they may
have suffered as a result of Respondent's failure to
reinstate them upon application, as aforesaid, by payment
to each of them of a sum of money equal to that which
each would have earned as wages and benefits from the
date of his or her unconditional application to return to
work to the date of Respondent's offer of reinstatement,
less his or her net earnings during such period, with
backpay and interest thereon to be computed in the
manner prescribed by the Board in F. W. Woolworth
Company, supra, and Isis Plumbing & Heating Co., supra.
See, e.g., Astro Electronics, Inc., supra at 573-574.
I find that none of the striking employees are disqualified
from reinstatement. Indeed, Respondent does not argue in
its brief that any should be disqualified. Only serious
misconduct actually engaged in by a striking employee is
disqualifying; an employee may not be disqualified for the
misconduct of others in which he did not participate or for
which he is not in some way personally responsible. See
Coronet Casuals, Inc., 207 NLRB 304 (1973), and cases
cited at 321. In respect to this issue I have given particular
attention to the threat made to Finch by John Owens and
to Vega by Cruice. This sort of activity is not to be
condoned. However, on occasion, such statements by
strikers may be regarded as part of the rhetoric of the
picket line, where, as here, they are isolated statements in a
protracted strike, apparently not taken seriously by the
person threatened, and there is an absence of concomitant
violence reinforcing the threat.
I have also fully considered the allegations that Helen
Orlando and Tony Orlando engaged in misconduct in the
course of their employment which might disqualify them.
However, as has been found, Respondent did not discharge
them when the alleged misconduct is said to have occurred,
and Respondent accused them of wrongdoing only as a
150
NYARI ODETTE, INC.
part of its campaign of retaliation against the employees
for selecting the Union as their bargaining representative.
In the circumstances, I do not believe that they should be
disqualified from reinstatement.
No affirmative provision will be recommended for the
rescission of Respondent's changes from past practice
found violative of Section 8(aX1) of the Act. These were
found to be unlawful because they were made in retaliation
against employee selection of the Union as their bargaining
representative and constituted unilateral action in deroga-
tion of the right of the employees to be represented by the
Union in respect to their working conditions. It will be
recommended that Respondent cease and desist from such
practices and bargain in good faith with the Union
concerning working conditions of employees and changes
in such conditions.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER 26
The Respondent, Nyari Odette, Inc., New Hope, Penn-
sylvania, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Terminating privileges theretofore granted its em-
ployees in reprisal for their union or other protected
concerted activities.
(b) Instituting changes in working conditions in reprisal
for and in order to discourage union membership or
activities or support of a labor organization.
(c) In any other manner harassing its employees in
reprisal for their union activities or other protected
concerted activities.
(d) Discriminating against employees by layoff, dis-
charge, or in any other manner because its employees
joined, aided, or supported a labor organization, or
engaged in other protected concerted activities.
(e) Refusing to bargain collectively in good faith with
Local 274, Hotel & Restaurant Employees & Bartenders
International Union, AFL-CIO, herein the Union, as the
exclusive bargaining representative of the employees in the
appropriate unit set forth in footnote 20 hereinabove with
respect to rates of pay, wages, hours of employment, or
other conditions of employment, or with respect to any
changes in such conditions of employment.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
21 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.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named labor organization as the exclusive representative of
the employees in the appropriate unit set forth above with
respect to rates of pay, wages, hours of employment, and
other terms or conditions of employment, and, if an
agreement is reached, embody such understanding in a
signed agreement.
(b) Regard and treat with the Union from the date good-
faith bargaining commences and for 12 months thereafter
as if the Union had been certified on the date that such
bargaining began.
(c) Make Charlotte Besson whole for any loss of pay or
benefits which she may have suffered as a result of the
discrimination against her in the manner set forth in the
Remedy section of this Decision.
(d) Upon their unconditional application, offer to the
employees who have participated in the strike which began
on February 14, 1976, including Charlotte Besson, Helen
Orlando, Anthony Orlando, Virginia Owens, Michele
Owens, John R. Oliver, Sallie Potts, Sallie Jean Potts, Anne
Besson, Deborah Deem, Peter Cruice, Maia Deem, Marie
Deem, John Owens, and Judith Ott, immediate and full
reinstatement and make them whole in the manner set
forth in the Remedy section of this Decision.
(e) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all payroll
records, social security payment records, timecards, per-
sonnel records, and all other records necessary in the
effectuation of this recommended Order.
(f) Post at its place of business at New Hope, Pennsylva-
nia, copies of the attached notice marked "Appendix." 2 7
Copies of said notice, on forms provided by Regional
Director for Region 1, after being duly signed by an
authorized representative of Respondent, shall be posted
by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director for Region I, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed as to any alleged violation of the Act
not found hereinabove in this Decision.
27 In the event 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 read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
151