O & H Rest, Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1977

232 N.L.R.B. 1082 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
O & H Rest., Inc., trading as The Backstage
Restaurant and Chefs, Cooks, Cafeteria, Food,
Beverages, and Service Employees Union, Local
22, Hotel & Restaurant Employees and Bartenders
International Union, AFLCIO and Jose Antonio
Alves. Cases 2-CA-14584 and 2-CA-14615
October 12, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On June 8, 1977, Administrative Law Judge Walter
H. Maloney, Jr., issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
limited exceptions and a brief in support thereof.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge to the
extent consistent herein, and to adopt his recom-
mended Order, as modified.'
The General Counsel has excepted to the Adminis-
trative Law Judge's finding that Respondent did not
violate Section 8(a)(3) of the Act when its agent,
Terence O'Neill, terminated Jose Colon. We find
merit in this exception.
Colon was hired by O'Neill as a dishwasher and
porter in April or May 1976.2 From approximately
May until September, Colon received a weekly $50-
cash premium in addition to his regular salary to
oversee the kitchen employees and to insure that the
kitchen was ready for inspection by health depart-
ment officials. In September, however, O'Neill
discontinued the premium and took away Colon's
extra responsibilities on the ground that Colon was
failing to keep the kitchen clean. The Administrative
Law Judge found that Respondent had no knowl-
edge of union activity at that time.
In early October, the Union began an organizing
campaign, and on October 8, it filed a representation
petition. On October 13, it demanded recognition
from Respondent. Around October 18, O'Neill asked
Colon if he had signed an authorization card, and,
although Colon had, he said no. Later that day,
however, on the advice of kitchen employee Alves,
Colon went tc, O'Neill and told him he had signed a
card. O'Neill said he would not have expected such a
thing from Colon. The Administrative Law Judge
I To the extent that no exceptions were taken to the rulings, findings, and
conclusions of the Administrative Law Judge not reversed herein, we adopt
them pro forma.
232 NLRB No. 173
found that Respondent's interrogation of Colon
violated Section 8(a)(1).
Approximately 2 days later, O'Neill told Colon
that he was transferring him to another restaurant,
with a pay increase, until "the trouble" at Backstage
cleared up. The Administrative Law Judge found
that the transfer was for the purpose of removing
Colon from the scene of the union activity and that,
accordingly, it violated Section 8(a)(l).
During the transfer conversation, Colon agreed to
tell O'Neill about union activities in the kitchen.
Soon thereafter they met at the John Barrymore,
another O'Neill restaurant. Colon told him that
employee Tellado was responsible for circulating
authorization cards. O'Neill thanked him, gave him
$100 cash, bought him a beer, and told him to report
to another restaurant. The Administrative Law Judge
found that the payment of money was for informa-
tion about the organizing campaign and a violation
of Section 8(a)(1).
A few days later, on October 24, Colon returned to
the Backstage. He told O'Neill that he preferred
working there, and that Alves had called him and
told him that the Union wanted Colon to return.
According to the Administrative Law Judge, O'Neill
angrily replied that Alves was not in charge and was
not the Union, and that Colon would not be paid for
his work at the other restaurant. O'Neill also accused
Colon of telling the Union about the payment of
$100. Colon denied telling the Union.
Approximately 2-1/2 weeks later, Colon asked
O'Neill for $10. O'Neill refused, reminding Colon
that he had told the Union about the $100. Again
Colon denied it. O'Neill said that while he had
treated Colon as a friend in the past, he would do so
no longer.
A week later, another kitchen employee, Sixto
Munoz, went to Colon and told him that O'Neill
wanted him to clean the refrigerator. Colon told
Munoz that he had too much work to do and that he
wanted to speak to O'Neill. When O'Neill came,
Colon told him that there was too much work and
that he needed an assistant to help with the work.
O'Neill told him that he was responsible for all of the
work. When Colon said no, O'Neill said, "Get out,
get out. You are fired." When Colon asked why,
O'Neill said it was for refusing to clean the
refrigerator. Colon replied that he was very busy, but
that he would do it when he had time. O'Neill took
him by the arm and ordered him to leave or he would
call the police. O'Neill then paid him for past owed
wages and Colon left.
2 All dates are 1976 unless noted otherwise.
1082
THE BACKSTAGE RESTAURANT
On November 26, 5 days later, O'Neill terminated
Alves.3 During the conversation in which he was
terminated, Alves raised with O'Neill the termination
of Colon. O'Neill replied that Colon was driving him
crazy and, whenever O'Neill spoke to Colon, Colon
went to Alves.
The Administrative Law Judge found the above
evidence insufficient to support a finding of an
8(a)(3) violation. According to him, in order to find a
violation, "it would be necessary to conclude by a
preponderance of the evidence that O'Neill's asserted
reason [insubordination] was a pretext and that his
underlying motive was a union-related consider-
ation." To dismiss here, the Administrative Law
Judge in essence rejected, as inadequate, evidence of
O'Neill's knowledge of Colon's union activity, his
stated animus toward Colon because of that activity,
and his subsequent statement to Alves that he
discharged Colon because of Colon's reports to
Alves.
We disagree with the Administrative Law Judge's
conclusion as to Colon's discharge, for it rests on an
incorrect understanding of the Board's test in an
8(a)(3) discharge case. We recently stated the correct
test in The Youngstown Osteopathic Hospital Associa-
tion. 4
Under Board precedent if part of the reason for
terminating an employee is unlawful, the dis-
charge violates the Act. As the Board and courts
have so often indicated, the issue is not whether
there existed grounds for discharge apart from
union or protected concerted activities. That the
employer has ample reason for discharging an
employee is of no moment. An employer may
discharge an employee for any reason, good or
bad, so long as it is not for union or protected
concerted activity. Even if the discharge is . . . in
reprisal for protected concerted activity, it is
unlawful.
Here, it is clear that O'Neill's personnel decisions,
including his ultimate decision to terminate Colon,
were reached in part in response to his employees'
union activity. Thus, immediately after learning that
Colon had signed an authorization card, O'Neill
transferred Colon to another restaurant. On termi-
nating Alves, he told'him, in so many words, that it
was for his organizing activities. And, in the same
conversation, he stated that he terminated Colon in
part because of Colon's reports to Alves of their
conversations, clearly dealing with union-related
matters. It was Colon's union activity which caused
the initial falling out between O'Neill and Colon, and
which we find resulted in O'Neill's unbending
insistence on Colon's termination after his initial
refusal to clean the refrigerator. In this context,
O'Neill's admission to Alves, coupled with his
animus toward Colon for his union activity, estab-
lishes the unlawful motive for the discharge. We,
therefore, conclude that the decision to terminate
Colon was based in substantial part on Colon's
support for the Union and O'Neill's belief that Colon
had informed the Union about the $100 payment.
AMENDED REMEDY
In addition to the discriminatory termination of
Jose Antonio Alves, we have also found that Colon's
termination violated Section 8(a)(3) of the Act, and
shall order that they be reinstated and reimbursed for
any loss of pay as set forth in F W. Woolworth, 90
NLRB 289 (1950), with interest to be computed in
the manner set forth in Florida Steel Corporation, 231
NLRB 651 (1977).5
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, O & H Rest., Inc., trading as The Backstage
Restaurant, New York, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as so
modified:
1. Substitute the following for paragraph 2(b):
"(b) Offer to Jose Antonio Alves and Jose Colon
immediate and full reinstatement to their former
positions or, in the event that their former positions
no longer exist, to substantially equivalent employ-
ment, without prejudice to their seniority or other
rights previously enjoyed, and make them whole for
any loss of earnings they have suffered because of the
discrimination practiced against them, with backpay
and interest as set forth in the Remedy, as amended."
2. Substitute the attached notice for that of the
Administrative Law Judge.
3 The Administrative Law Judge found this termination a violation of
Sec. 8(aX3) of the Act.
4 224 NLRB 574, 575 (1976). While this case dealt with a discharge for
concerted protected activity under Sec. 8(aXI). the Board has long applied
the same legal standards for 8(aX3) and (I) discharges.
s See, generally. Isis Plumbing & Healing Co., 138 NLRB 716(1962).
1083
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employees
concerning their union activities or the union
activities of other employees.
WE WILL NOT pay employees to disclose the
union activities and sentiments of other employ-
ees.
WE WILL NOT offer employees money or any
other financial inducement to vote against the
Union.
WE WILL NOT threaten employees with dis-
charge, if they support the Union.
WE WILL NOT transfer employees to another
location in order to discourage union activities.
WE WILL NOI discourage membership or
activities on behalf of Chefs, Cooks, Cafeteria,
Food, Beverages, and Service Employees Union,
Local 22, Hotel & Restaurant Employees and
Bartenders International Union, AFL-CIO, or
any other labor organization, by discharging
employees or discriminating against them in their
hire or tenure.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of rights guaranteed to them by Section 7 of the
National Labor Relations Act.
WE WILL offer to Jose Antonio Alves and Jose
Colon full and immediate reinstatement to their
former position or, if those jobs no longer exist, to
substantially equivalent employment, and WE
WILL make them whole for any loss of pay which
they have suffered by reason of the discrimination
practiced against them with interest.
WE WIL.L recognize and, upon request, bargain
collectively with Chefs, Cooks, Cafeteria, Food,
Beverages, and Service Employees Union, Local
22, Hotel & Restaurant Employees and Bartend-
ers International Union, AFL-CIO, as the exclu-
sive collective-bargaining representative of all of
I The principal docket entries in this case are as follows: Charge filed on
November 4. 1976. by Chefs, Cooks, Cafeteria, Food. Beverages, and
Service Employees Union, Local 22. Hotel & Restaurant Employees and
Bartenders International Union. AFL CIO (herein called Union or Local
22), in Case 2 CA 14584: charge filed herein on November 29, 1976. by
Jose Antonio Alves. an individual: consolidated complaint issued herein on
December 27, 1976. and amended on January 21, 1977; the Respondent's
answer filed on January 27. 1 977; hearing held in New York. New York, on
February 28 and March 1. 1977; briefs filed herein by the General Counsel
and the Respondent on April 4. 1977.
In a related representation case, a petition for an election among all of
Backstage's kitchen employees, with the usual exceptions, was filed on
October 8, 1976, (Case 2-RC 17481); Stipulation for Certification Upon
Consent Election was approved by the Regional Director on October 27,
1976: petition dismissed on January 12. 1977. because of the pendency of
blocking charges and the issuance of the consolidated complaint herein.
our regular full-time kitchen employees, excepting
part-time employees, all other employees, guards,
and supervisors as defined in the Act, and, if an
agreement is reached, embody the same in a
signed written contract.
O & H REST., TRADING
AS THE BACKSTAGE
RESTAURANT
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, JR., Administrative Law Judge:
This case was heard at New York, New York, upon a
consolidated unfair labor practice complaint,' issued by
the Acting Regional Director for Region 2 and later
amended, which alleges that the Respondent, O & H Rest.,
Inc., trading as The Backstage Restaurant (herein called
Backstage), 2 violated Section 8(a)(1), (3), and (5) of the
Act. More specifically, the complaint, as amended, alleges
that the Respondent unlawfully interrogated employees
concerning their union activities, and the union activities of
other employees, threatened to discharge employees if the
Union won an election, engaged in espionage of the union
activities of employees, paid employees for information
relating to the union activities of other employees, and
conferred benefits upon employees to induce them to
abandon their support for the Union. The consolidated
complaint also alleges that the Respondent discriminatorily
discharged employees Jose Antonio Alves and Jose Colon
because of their union activities, and that the Respondent
unlawfully refused to recognize and bargain with Local 22
as the representative of its full-time kitchen employees. The
General Counsel seeks a so-called Gissel remedy,3 by the
terms of which the Respondent would be required to
recognize and bargain with Local 22. The Respondent
denies the commission of any independent violations of
Section 8(a)(1), asserts that Alves and Colon were dis-
charged for just cause, and denies the propriety of a Gissel
remedy, stating that the Union had no business abrogating
the terms of a representation election by filing blocking
charges. The Respondent also alleges, by way of an
affirmative defense, that the Union and various employees
involved in this case were guilty of serious vandalism and
that such actions should preclude the Board from granting
Respondent admits, and I find, that it is a New York corporation which
operates a restaurant in New York City. From August 23, 1976, until
October 27, 1976, a representative penod. Raspondent derived, in the course
and conduct of its restaurant business, gross revenues in excess of$100,000,
which, when projected on a 12-month basis, amount to gross revenues in
excess of $600,000. In the course and conduct of its business, it purchased
goods and materials valued in excess of $16,000 from New York businesses
which, in turn, purchased said goods and merchandise from points and
places located outside the State of New York. Accordingly, the Respondent
is an employer engaged in commerce within the meaning of Sec. 2(2), (6),
and (7) of the Act. The Union is a labor organization within the meaning of
Sec. 2(5) of the Act.
:' N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
1084
THE BACKSTAGE RESTAURANT
any remedy. Upon these contentions, the issues herein were
joined.4
FINDINGS OF FACT
I. THE UNFAIR LABOR PRACTICES
Respondent Corporation owns and operates The Back-
stage Restaurant, which, as its name might suggest, is
located in the theater district of midtown Manhattan.
Terence O'Neill owns 25 percent of the corporation and,
since March 1976, has been actively engaged in the
management of this concern. O'Neill also owns a substan-
tial interest in other Manhattan restaurants, including the
John Barrymore, The Abbey, and Jim Brady's. Early in
October 1976, Local 22 began an organizing campaign
among the kitchen employees at Backstage. The drive was
initiated by Eduardo Tellado, a chef, who went to the
Union's office, spoke to Union Organizer Noel Rodriguez,
and suggested that the Union interest itself in representing
Backstage employees. Rodriguez gave Tellado a number of
authorization cards and suggested that he get them signed.
Tellado returned to the restaurant and promptly obtained
the signatures of I employees. He turned the card in to the
Union. A few days later, he obtained two additional
signatures and turned those cards in to the Union. As
discussed more fully hereinafter, by October 13, at least 8
of the Respondent's 15 full-time kitchen employees had
signed valid authorization cards. On October 8, the Union
filed a representation petition with the Board in Case 2-
RC-17481. On October 13, a representative of Local 22
visited O'Neill at Backstage and demanded recognition.
O'Neill referred him to Charles F. Mintz, the Company's
attorney. On October 18, Union Representative Harry
Dallas phoned Mintz and repeated the demand for
recognition. Mintz said he would see him the following day
at the Board office to discuss the pending representation
petition. At no time did the Respondent ever recognize or
agree to bargain with the Union. It did execute an
agreement for a consent election which was approved by
the Regional Director on October 27. No election ever took
place because of the filing of the charges herein.
Late in October, Tellado approached O'Neill and
requested a change in working hours. The conversation
took place in the bar of the restaurant. Tellado explained to
O'Neill that he lived in Brooklyn, so when he worked late
night hours he was not able to get home until 3 or 4 o'clock
in the morning. He wanted to work the day shift instead.
O'Neill responded to his request by stating that he too had
a problem; namely, the Union, and said he did not like the
Union. Tellado pressed him with his request, repeating that
he wanted to change shifts. O'Neill finally agreed, but later
said to Tellado, "Don't vote for the Union when the
election comes." Shortly thereafter, Tellado started work-
ing at 8 a.m.
One of the alleged discriminatees, Jose Antonio Alves,
began working at Backstage in January 1976, as a part-time
salad man. In July 1976, he became a full-time employee.
On October 5, he signed a union card presented to him by
Tellado. He also assisted Tellado in the organizing effort,
4 Errors in the transcript have been noted and corrected.
5 Alves was a Spanish-speaking wvitness who testified with the aid of an
passing along cards from Tellado to fellow employees
Diomedes Crespo and Antonio Perez. Alves and the
Respondent had an arrangement whereby he would be
paid "off the books." This is the phrase which was used to
describe the fact that the Company bookkeeper would not
prepare a weekly check for Alves, containing the various
income tax and social security withholdings. Instead, she
would simply dip into petty cash and, with O'Neill's
permission, pay Alves $200 in currency so that the salary
agreed upon between the Respondent and Alves was also
his net take-home pay. Another employee, Diomedes
Crespo, was also paid on the same basis.
I credit the testimony of Rafael Perez that, on one
occasion in October, he overheard a conversation at the
restaurant between O'Neill and Sixto Munoz. In the course
of this conversation, O'Neill told Munoz, "... Union
coming, everybody out."
About 2:30 p.m. on October 18, O'Neill summoned
Alves from the restaurant kitchen to the bar and began to
speak with him in the presence of another managerial
employee named Hook. O'Neill asked Alves on this
occasion if he had signed a card and Alves replied that he
had done so. He asked why Alves had done so, stating that
this action would make him go to jail and would cause
problems for Alves. O'Neill then asked Alves where he had
obtained a union card. Alves replied that he had found it in
his locker. While O'Neill testified to various conversations
with Alves concerning the latter's pay status, he never
specifically denied the conversation here in question
concerning Alves' union activities.
About this same time, O'Neill also had a conversation
with Jose Colon at Backstage. I credit Colon's testimony
that O'Neill asked him if he signed a union card and that
initially Colon had replied that he had not done so. In fact,
Colon did sign a card. O'Neill asked Colon a second time if
he had signed a card and also wanted to know which of the
other boys had signed cards. Colon replied that he did not
understand the question. Shortly thereafter, Colon men-
tioned this conversation to Alves in the kitchen. Alves
advised Colon to tell O'Neill the truth so Colon went back
to the dining room and told O'Neill that he had done so.
O'Neill said that he would never have expected such a
thing from Colon.
A few days later, O'Neill came to Alves in the kitchen at
Backstage and told Alves that his lawyer informed him he
would have to formally put him on the Company's payroll,
meaning that he would be subject to withholding taxes.
O'Neill also said he had to report Alves to the Labor
Department. He said that he would have a secretary bring
Alves an Internal Revenue Service W-2 withholding form
to sign. Alves replied, "Fine." A few days later, O'Neill had
a second conversation in the kitchen with Alves. He told
Alves that he had been to "court" 5 and had stated there
that Alves was an independent contractor. He then told
Alves that Alves would have to pay income taxes out of the
$200 in cash he received each week and would not be
allowed to vote in the election. Alves protested about being
denied the right to vote, stating that he had been a union
member for many years.
interpreter. I take his reference to "court" to mean that O'Neill told him that
he had been at the National Labor Relations Board's Regional Office.
1085
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Colon testified that, on or about October 20, O'Neill
approached him in the kitchen and told him that he was
going to be transferred to another restaurant where he
would earn $150 per week. O'Neill said he would send him
there for about 3 weeks until "this trouble" cleared up.
Colon agreed to tell O'Neill what was going on in the
kitchen. They made an appointment to meet and discuss
the matter at the John Barrymore Restaurant, another of
O'Neill's holdings, and did so a short time thereafter. At
this meeting, Colon informed O'Neill that Tellado was the
employee who was responsible for circulating union cards.
He also said that Alves had signed a card, and that Munoz
and some other employees who had been discharged had
signed cards. O'Neill then told Colon that he would not
forget the favor Colon had just done, pulled $100 in cash
out of his pocket, and handed it to Colon. Colon responded
by asking O'Neill whether he was trying to buy him, but he
took the money. O'Neill then bought Colon a beer and told
him to report to work at another restaurant, Jim Brady's,
where some renovation was in progress in preparation for
opening. O'Neill admits meeting with Colon at the John
Barrymore and says he did so only because there was a
Spanish-speaking waitress working at that establishment
who could serve as an interpreter. He admits giving Colon
$100 in cash on that occasion but claims that it was merely
an advance for Colon's wages for working at Jim Brady's. I
think O'Neill's explanation for this sequence of events is
highly implausible and I credit Colon.
On or about October 24, Colon returned to Backstage.
When O'Neill saw him, he asked him what he was doing
there. Colon replied that he preferred to work at Backstage
and that Alves had called to tell him that the Union wanted
him back at Backstage. O'Neill angrily told Colon that
Alves was not the boss and that Alves was not the Union
either. Colon told O'Neill that he had 5 days' work there
and that he could keep those 5 days in exchange for the
$100. O'Neill said that he would not pay Colon for the 2
days that he worked at Jim Brady's. He also said he knew
Colon had gone to the Union and had informed them
O'Neill had given him $100. Colon denied having done so.
About the middle of November, Colon asked O'Neill for
$10. O'Neill replied, "Why should I do you a favor and
give you $10?" citing the fact that Colon had gone to the
Union and had told them O'Neill had given him $100.
Again Colon denied he had done so. O'Neill said, in the
past, he had treated Colon as a friend but that he would do
so no longer.
On or about November 21, while Colon was working in
the kitchen, Sixto Munoz, who was acting in effect as a
straw boss, came to Colon and relayed a message from
O'Neill to the effect that he should clean out the
refrigerator. 6 Colon objected, saying that it was too much
work. He told Munoz he wanted to speak with O'Neill,
whereupon O'Neill came to the kitchen. Colon told O'Neill
he needed an assistant because he had too much to do.
O'Neill insisted Colon was responsible for all the work that
had to be done and Colon replied, "No," at which point
6 One of the reasons O'Neill had hired Colon on a full-time basis at
Backstage was to keep the kitchen clean and ready at all times for inspection
by health department officials. Originally. O'Neill paid Colon S50 a week in
cash, over and above his regular reported salary, but he discontinued this
practice about September.
O'Neill ordered him out of the restaurant, telling him he
was fired because he refused to clean the refrigerator.
Colon then objected he was not refusing to clean it but he
had so much work to do he could only clean it when he had
time. O'Neill took Colon by the arm and told him to get
out or he would call the police. O'Neill paid him off and
again ordered him out of the restaurant.
After being notified he would have to be on the regular
payroll, Alves continued to work at Backstage for another
month "off the books." On or about November 26, Peter
Kratz, the head chef, told Alves O'Neill wanted to see him
in the bar. Kratz indicated to Alves that he was about to be
fired. Alves asked Kratz why and Kratz replied that
O'Neill had his reasons. Alves found O'Neill in the bar of
the restaurant and asked him if he was being fired. O'Neill
said he was. Alves asked why and O'Neill replied, "I don't
want you working back there." Alves asked him further,
"Is that the only reason?" and pressed him as to whether
the discharge was because of the Union. O'Neill then told
Alves that, because of him, "I had to go downtown three
times." 7 Alves then went to see Kratz and asked Kratz to
put in a good word for him with O'Neill. Kratz did so.
Alves went back to the bar and again spoke with O'Neill.
O'Neill persisted in his original decision, telling Alves that
he was letting him go because he could not have someone
around who was working "off the books." During this
conversation, O'Neill mentioned he had fired Jose Colon
because Colon was driving him crazy and was reporting
back everything O'Neill said to him to Alves. When Alves
reported this conversation to Kratz, Kratz said he would
give him a recommendation for another job and wrote out
a short note with the name and address of another
restaurant of his acquaintance, stating on the note in
essence that, in his opinion, Alves was a good employee.
Kratz gave the note to Alves and the latter left the
restaurant.
Jerry Toner and O'Neill are principals, both in Backstage
and in another restaurant called The Abbey. Jose Collado
formerly worked at The Abbey, left there, and began to
work at Backstage during the payroll period ending
October 16. Collado testified without contradiction that
during his last week at The Abbey and before he started at
Backstage, Toner spoke to him in the dining room at the
Abbey and offered him $100 to vote against the Union.
II. ANALYSIS AND CONCLUSIONS
A. The Refusal of the Respondent To Bargain With
Local 22
The parties agree that, on October 13, representatives of
Local 22 went to Backstage Restaurant, spoke with
O'Neill, and asked him to recognize and bargain with the
Union. O'Neill told them to speak with his attorney,
Charles Mintz. Five days later, Local 22's representative,
Harry Dallas, phoned Mintz and made the same request.
The Respondent admits both of these requests were made
7 The Regional Office of the Board is located in an area often referred to
as lower Manhattan or downtown Manhattan.
1086
THE BACKSTAGE RESTAURANT
and admits the further fact it refused to recognize the
Union.
In order to determine whether the Respondent was then
under any obligation to bargain with Local 22, it must first
be determined whether or not Local 22 was the majority
representative of the Respondent's employees.s While the
date from which a bargaining order should read is the date
on which an employer embarks upon a course of unlawful
conduct which renders a fair and free election impossible,9
the General Counsel is correct in his contention that
October 13 is the date on which majority status should be
measured since "the critical Gissel date for determining
majority status where no election has been held is the date
the union seeks recognition." Peerless of America, 198
NLRB 982, 984 (1973).
1. Eligibility
On October 13, the Respondent employed 15 full-time
kitchen employees at The Backstage Restaurant. The
record reflects that Jose Colon, Sixto Munoz, Luis Morot,
Ramon Munoz, Jose Collado, James Freeman, Michael
McLaughlin, and Martin Orange were employed in the
unit on the critical date. In addition to these persons, there
were several other alleged employees mentioned in the
record whose status is in dispute.
Jose Antonio Alves and Diomedes Crespo - Alves and
Crespo were working at Backstage on the critical date.
Alves was a salad man and worked full time between July
and November, when he was discharged. Crespo worked
through October and up until February 1977. Like Alves,
Crespo was a salad man but worked on the night shift,
putting in a 35-hour week. The Respondent objected to
their inclusion in the record, but the nature of these
objections vacillated at the hearing and they were not
further explained in the brief. At first, the Respondent
contended that Alves and Crespo were not employees but
subcontractors because they were paid "off the books."
Later, it asserted they were casual employees but still
ineligible to be included in the bargaining unit. Neither
contention has any merit.
Both employees worked full time in the kitchen under
conditions indistinguishable from those of regularly paid
employees. The only difference between their status and
that of other employees is that Alves and Crespo were paid
a flat sum each week in cash rather than being compensat-
ed from the regular payroll on which Federal, state, and
F.I.C.A. deductions are made. The fact the Respondent
and these individuals had an arrangement respecting
compensation which was designed to defeat the payment of
withholding taxes does not detract from the fact both
worked for a stated sum under regular supervision and had
none of the independence of action or judgment normally
associated with an independent contractor. Measured by
the standards of an industry where turnover appears to be
extremely high, both worked for the Respondent for fairly
long periods of time. There is not a scintilla of evidence
that either party regarded his tenure at Backstage as having
other than indefinite duration. Accordingly, I conclude
4 The General Counsel alleged in par. 6 of the complaint that all regular
full-time kitchen employees, with the usual exclusions, who are employed at
Backstage Restaurant constitute a unit appropriate for collective bargaining.
that they were employees within the meaning of the Act,
and they were employed by the Respondent as full-time
kitchen employees on October 13.
Ivan Tellado - Ivan Tellado, the brother of Eduardo
Tellado, worked for the Respondent only 3 or 4 days. He
came to Backstage at his brother's request to be present in
the kitchen in order to learn to cook. There is considerable
doubt that he was even actually hired by the Respondent in
any capacity. He signed a card dated October 4, 1976.
Assuming he signed the card during his employment, the
mathematics of the calendar indicate he could not have
been employed by the Respondent on October 13, the
critical date in this proceeding. The General Counsel
concedes he should not be in the unit, and I will exclude
him.
Shui Tung - Tung was employed by the Respondent
during late night and early morning hours to clean the
restaurant. He played no part in the preparation of food
and was not present rni the premises during the hours when
food was served. The stipulated list of employees found in
the record indicates that Tung was not employed before
the week ending October 23, and hence was not an
employee on October 13. For this reason, and also because
his employment was unrelated to the preparation of food, I
conclude that Tung was not a member of the bargaining
unit on the critical date.
Daniel Murphy - Murphy was employed by the
Respondent on the critical date and is still working there.
O'Neill testified that he was a part-time employee.
However, the payroll records for October, which are in
evidence, indicate that he worked 48 hours a week at least
during the month of October. Accordingly, I will include
Murphy in the unit on the critical date as a full-time
kitchen employee.
Peter Kratz - Kratz is the head chef. According to
O'Neill, he completely runs the kitchen. His weekly pay is
much higher than that of other employees. I discredit
O'Neill's assertion that Kratz was hired in July, if by that
statement O'Neill meant that Kratz became an employee
of the Respondent during that month, because the
stipulated list of employees in the record, as well as the
Respondent's payroll records, indicates that Kratz' first full
week of employment ended on October 23. Accordingly, he
was not on the payroll on the critical date and should not
be included in the unit for that reason alone, leaving aside
any question of his supervisory status.
Robert McLaren - McLaren was a night chef. The
records in evidence indicated that, during the last three
payroll periods in October, he worked a 48-hour week.
O'Neill stated that McLaren left in November and was
considered by him a temporary employee who worked a
total of about 4 weeks. In light of this testimony, which is
uncontradicted, I conclude that McLaren was not hired as
a permanent employee and, as a temporary employee,
should not be included in the bargaining unit.
Higinio Antonio Perez - Perez, sometimes referred to in
the record as Tony or Antonio Perez, has worked full time
for the Respondent as a porter for 6 months and, according
The Respondent failed to deny this allegation so it stands admitted on the
basis of the initial pleadings. Sec. 102.20 of the Rules and Regulations.
9 Trading Port, Inc., 219 NLRB 298 (1975).
1087
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to O'Neill, may still be working there. He was in the
Respondent's employ on October 13. Accordingly, he
should be included in the unit.
Higinio Raphael Perez - Higinio Raphael Perez, who is
often referred to by his middle name, is a night pantryman
who worked full time at least thoughout the entire month
of October. Accordingly, he should be included in the unit.
Eduardo Tellado - Tellado was employed full time
during the critical period in the kitchen as a broilerman.
Respondent objects to his inclusion in the unit on the basis
that he was a supervisory employee. Tellado testified
credibly that he had no power to hire or fire or to direct
employees in the kitchen in the performance of their duties.
He had no power to discipline employees. He simply took
orders from waiters, prepared the portion of the order for
which he was responsible, and put it out for the waiter. I
discredit O'Neill's conclusionary testimony that Tellado
was "more or less" in charge of the kitchen. As he
possessed none of the statutory requirements of superviso-
ry authority, I conclude that Tellado should be included in
the unit as of October 13.
Elias Rodriguez - Rodriguez worked as a chef through-
out the month of October. He received the same compensa-
tion as did Tellado and performed similar duties. He was
paid $100 per week less than Kratz. There is no evidence in
the record of any kind that Rodriguez hired or fired
employees or that he responsibly directed them in the
course of their employment. Accordingly, he should be
deemed to be a member of the unit.
In summary, the record herein reflects that, as of October
13, when the Union made its first demand for recognition,
the Respondent employed 15 full-time employees in its
kitchen.10
2. Local 22's majority status
The General Counsel bases his claim that the Union had
majority status upon union authorization cards which were
signed by various employees in the course of the Union's
organizing drive. The cards in question are conventional
dual-purpose cards which are printed in English on one
side and in Spanish on the other side. The Respondent
conceded that four cards were validly executed. They are
the cards of Jose Colon, Sixto Munoz, Ramon Munoz, and
Luis Morot. The Respondent interposed no objection to
the cards of Elias Rodriguez and Eduardo Tellado on the
basis of their execution, its objection to their cards being
founded solely on the contention that Rodriguez and
Tellado were not in the bargaining unit because of their
alleged supervisory status. As I have concluded that both
individuals were employees and members of the bargaining
unit, I will count their cards in determining the Union's
majority status. The Respondent interposed no objection
to the cards of Jose Alves or Diomedes Crespo on the basis
of their execution, its objection to their cards being
founded on the contention that Alves and Crespo were
either casuals or contractors but, in any event, not
employees who were properly a part of the bargaining unit.
As I have concluded that both men were employees in the
10 Since September, the Respondent has employed Walter Smalley. a
member of Local 22, as a steward. It is unnecessary for purposes of
determining majority status to decide whether Smalley should be considered
bargaining unit, I will also count their cards in determining
the Union's majority status.
After determining that the cards executed by all of the
aforementioned employees are valid in supporting the
Union's claim of majority status as of October 13, I
conclude that, as of that date, the Union held authorization
cards properly signed by at least 8 of 15 employees who
were employed in the appropriate bargaining unit, and
further conclude that it was the exclusive collective-
bargaining representative of the Respondent's full-time
kitchen employees on and after that date. The General
Counsel proffered five additional designation cards to
which objections were lodged by the Respondent. In light
of the above finding, it is not necessary to pass upon the
validity of these cards and I will not do so. In light of these
findings, and the findings hereinafter made in the "Reme-
dy" section of this Decision, I conclude that the Respon-
dent's refusal to bargain with Local 22 constituted a
violation of Section 8(a)( ) and (5) of the Act.
B. Independent Violations of Section 8(a)(1) of the
Act
The following acts and conduct on the part of the
Respondent, as more fully set forth above, constitute
violations of Section 8(aX I) of the Act:
(1) O'Neill granted Tellado a change in shift in
conjunction with his own request to Tellado to abandon
support for the Union. There is no question that Tellado
initiated the request for a change of working hours so that
he would not arrive home in Brooklyn so late at night and
there is no question that the Respondent granted the
request. However, when the Respondent coupled its
response with a counter-request to Tellado to forgo his
union support, the two items became, in effect, a tradeoff,
so the change of working hours amounted to the granting
of a benefit designed to interfere with the Section 7 rights
of the employee in question.
(2) O'Neill's statement to Munoz, which was overheard
by Rafael Perez, that if the ". . . union" came in,
"everybody out" constituted a threat to discharge employ-
ees in reprisal for their union support and is a clear
violation of the Act.
(3) On or about October 18, O'Neill questioned Alves in
the presence of another management employee concerning
whether he had signed a card and why he had signed one.
He said that the action would "cause problems" for Alves
as well as for himself. The questioning by a high
management official, coupled with a veiled threat, consti-
tutes coercive interrogation which violates the Act.
(4) On or about the same date O'Neill questioned Alves,
he also questioned Colon concerning Colon's union
activities and also asked Colon which other employees
signed cards. Colon fabricated a response, indicating his
own fear of reprisal, and later changed his reply to O'Neill
on advice from Alves. The setting and response indicate
clearly that the questioning was coercive and a violation of
the Act.
a member of the unit (and hence whether his membership in Local 22 counts
in determining the Union's majority), so I make no determination of this
question.
1088
THE BACKSTAGE RESTAURANT
(5) During a conversation at the John Barrymore
Restaurant, which followed shortly after O'Neill's initial
conversation with Colon, Colon told O'Neill who was
responsible for pushing the organizing drive and named
certain employees who had signed cards. O'Neill expressed
his gratitude to Colon for furnishing such information and
handed him $100. As O'Neill complained later, the Union
and presumably other employees got wind of his action.
Paying employees for information concerning an orga-
nizing campaign is an obvious interference with their rights
and the rights of other employees and is a serious violation
of Section 8(a)( ).
(6) O'Neill transferred Colon from Backstage to Jim
Brady's until "the trouble" at Backstage cleared up. This is
another way of saying that Colon's transfer was prompted
by a desire on O'Neill's part to put a damper on his union
activities and to reduce union organizing strength at
Backstage. The transfer violates Section 8(a)( I) of the Act.
(7) As a principal in the operation of Backstage, Toner is
a person for whose words and actions Backstage is
vicariously responsible, even though he spends his time
managing The Abbey and is part owner of that establish-
ment. When Toner offered prospective Backstage employ-
ee Collado $100 to vote against the Union after he was
hired at Backstage, Toner made an illegal inducement
which violated Section 8(a)(l) of the Act.
C. The Discharge of Jose Colon
There is no doubt from the facts found above that Colon
was a union supporter and that O'Neill regarded him as
such. It is also true Colon had incurred O'Neill's displea-
sure because of his union activities, as evidenced by
O'Neill's refusal to advance or give him $10 sometime in
November when Colon requested it. Colon was fired
during an argument and altercation with O'Neill over
whether Colon was required to clean the refrigerator at the
restaurant. To find that this discharge was discnminatorily
motivated, it would be necessary to conclude by a
preponderance of the evidence that O'Neill's asserted
reason was a pretext and that his underlying motive was a
union-related consideration. Such a determination is
difficult to make, even after construing Colon's own
version of the incident in a light most favorable to him,
something I decline to do.
Colon was not a satisfactory employee. For several
months, he had been paid a premium in cash over and
above his regular salary to induce him to keep the kitchen,
including the refrigerator, in immaculate condition so that
the restaurant would pass muster during any health
department inspections. Colon performed this task in such
a desultory manner that, following Colon's brief vacation
in Puerto Rico, O'Neill discontinued the weekly cash
premium. This event took place sometime before any
rumblings of unionism were heard at the restaurant.
When, on or about November 21, the issue of Colon's
duties arose again, it was merely the resurfacing of an old
problem. O'Neill told Colon through an intermediary that
Colon was to keep the refrigerator clean in addition to his
other kitchen duties. Colon insisted on speaking to O'Neill.
When O'Neill came into the kitchen, Colon told O'Neill
that this was too much to expect and spoke to O'Neill in an
insubordinate manner. As a result of Colon's abrupt
behavior, O'Neill fired him on the spot. Even assuming
that, in the course of the terminal conversation, Colon
backed away from his initial refusal to clean the refrigera-
tor, he left O'Neill with the understanding that he would
only do so when he got around to it and after finishing his
other duties. O'Neill's response was immediate, angry, and
clearly prompted by Colon's own attitude and behavior
upon receiving a legitimate work assignment.
The General Counsel does not argue that Colon was
being goaded or harassed. Such an argument could hardly
float, since cleaning the refrigerator had long been a part of
Colon's standing duties. On the occasion in question,
Colon was only being reminded, and through an intermedi-
ary at that, of what was expected of him. The discussion
which ensued in the kitchen took place as a result of
Colon's request, not at O'Neill's instigation, and O'Neill's
response to the situation was hardly different from what
one might expect of any employer who is confronted by a
balky and insubordinate employee. Accordingly, I con-
clude that Colon was in fact discharged for insubordina-
tion, not for union activities, and that the discharge did not
violate the Act. Accordingly, so much of the consolidated
complaint which alleges a violation of the Act in this
regard should be dismissed.
D. The Discharge of Jose Antonio Alves
Alves was also a union activist and O'Neill knew it. As
found above, Alves had been the object of unlawful
interference with his Section 7 rights by O'Neill during the
first weeks of the organizing effort. For a considerable
period of time, Alves and O'Neill had been parties to an
illegal arrangement whereby Alves was paid each week in
cash in a manner calculated to avoid payment of state and
Federal income taxes and other normal withholdings.
There is no doubt that both Alves and the Respondent
were in pari delicto in what amounts to a conspiracy to
violate the Internal Revenue Act, so it is fatuous for the
Respondent to assert in this proceeding that Alves'
wrongdoing should serve as a defense to the Respondent's
own misconduct and preclude the Board from ordering a
remedy which might otherwise be found to be appropriate.
After the organizing campaign came into full flower and
an election agreement was concluded, O'Neill told Alves
that he could no longer pay him "off the books" and would
have to treat him as an employee subject to normal
withholding taxes. Alves said "Fine" and anticipated that
the Respondent would soon thereafter present him with an
Internal Revenue W-2 withholding form on which he
would indicate his income tax deductions. No such form
was forthcoming and the Respondent continued to pay
Alves in cash "off the books" for another month. Indeed,
he also continued to pay Crespo in this manner and raised
no objection to Crespo's continued employment. In the
first of two terminal interviews between O'Neill and Alves
on November 26, O'Neill complained that, because of
Alves, he had to "go downtown" three times. While O'Neill
stated that his reason for terminating Alves was because he
could not continue to have him work at Backstage "off the
books," he admits that, on November 26, he did not offer
Alves, on the occasion of his discharge, the option of
1089
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continuing as an employee on a regular payroll basis.
When asked why he had not made the offer, O'Neill simply
replied, "I had my reasons." If those reasons did not relate
to union considerations, we have yet to know what they
are. In light of these factors and of O'Neill's evasive
explanation, it is quite apparent that O'Neill terminated
Alves because of the latter's union activities. This action
violated Section 8(a)(3) of the Act.
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CONCLUSIONS OF LAW
1. The Respondent, O & H Rest., Inc., trading as The
Backstage Restaurant, is now and at all times material
herein has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Chefs, Cooks, Cafeteria, Food, Beverages, and
Service Employees Union, Local 22, Hotel & Restaurant
Employees and Bartenders International Union, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. All regular full-time kitchen employees of the
Respondent, exclusive of all other employees, part-time
employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act.
4. Since October 13, 1976, Chefs, Cooks, Cafeteria,
Food, Beverages, and Service Employees Union, Local 22,
Hotel Restaurant Employees and Bartenders International
Union, has been the exclusive collective-bargaining repre-
sentative of all employees employed in the unit found
appropriate above in paragraph 3 for purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By its refusal to bargain with the Union designated
above in paragraphs 2 and 4 as the duly designated
majority representative of its employees in the unit found
appropriate in Conclusion of Law 3, above, the Respon-
dent herein has, since October 18, 1976, violated Section
8(a)(5) of the Act.
6. By discharging Jose Antonio Alves because of his
union sentiments and union activities, the Respondent
herein violated Section 8(a)(3) of the Act.
7. By the acts and conduct set forth above in para-
graphs 5 and 6; by coercively interrogating employees
concerning their union sentiments and activities and the
union sentiments and activities of other employees; by
paying employees to disclose the union activities and
sentiments of other employees; by offering money to
employees to vote against the Union; by threatening
employees with discharge if they continued to support the
Union; and by transferring employees to another location
in order to minimize union strength and to discourage
unionization, the Respondent herein violated Section
8(a)(l) of the Act.
8. The aforesaid unfair labor practices have a close,
intimate, and substantial effect on the free flow of
1I F. W. Woolworth Conpany, 90 NLRB 289 (1950).
12 See, for example, Byrne Dairy Inc. v. N. LR.B., 431 F.2d 1363 (C.A. 2,
1970); N.LR.B. v. International Metal Specialities, Inc., 433 F.2d 870 (C.A.
2, 1970); N.L.R.B. v. Marcellus Vault & Sales, Inc., 431 F.2d 933 (C.A. 2,
commerce within the meaning of Section 2(6) and (7) of the
Act.
REMEDY
Having found that the Respondent herein has committed
certain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom and to take other
actions designed to effectuate the purposes and policies of
the Act. As the unfair labor practices herein have been
substantial and pervasive and have included a discrimina-
tory discharge, I will recommend a so-called broad 8(a)(1)
order, designed to suppress any and all violations of that
section of the Act. J. C. Penney Co., 172 NLRB 127, fn. I
(1969); Adam and Eve Cosmetics, Inc., 218 NLRB 1317
(1975). The recommended Order will require the Respon-
dent to offer to Jose Antonio Alves full and immediate
reinstatement to his former or substantially equivalent
position and to make him whole for any loss of earnings he
has suffered because of the discrimination practiced
against him, said backpay to be computed in accordance
with the Woolworth formula" with interest thereon
running at 6 percent per annum. I will also recommend
that the Respondent be required to post the usual notice
telling its employees of their rights and of the results in this
case.
One of the major bones of contention in this case is the
propriety of a Gissel remedy. In Gissel, the Supreme Court
authorized the Board to issue a bargaining order instead of
relying upon the representation election process in situa-
tions wherein an employer has engaged in unfair labor
practices which make the holding of a fair and free election
impossible. Since Gissel, this remedy has been utilized
many times by the Board and has been upheld on many
occasions by the courts.12 I will recommend it in this case.
We are here confronted by a situation in which a
demand for recognition was immediately met by a
systematic effort to destroy the Union's majority status.
The effort extended not only to coercive interrogation but
to grants of benefits which included outright vote buying.
It also included the discriminatory discharge of an active
union adherent which was accomplished under a tissue-
thin pretext. Such actions certainly prevent the holding of a
fair and free election.
The Respondent complained in its pleadings and in its
brief that the Union in bad faith had filed charges which
served to block the holding of a representation election to
which the Union had already agreed. The filing of blocking
charges is a commonplace occurrence in Board practice.
The dismissal of a petition upon the issuance of complaint
based upon the pendency of blocking charges is authorized
by the Manual on Practice and Procedure and is a
standard part of Board practice. Such an action on the
Union's part does not amount to bad faith, especially as
the complaint herein has been found to be, in large part,
amply supported by the evidence. Respondent also
interposes as a defense to a bargaining order the contention
that, during the organizing campaign it experienced certain
1970); MPC Restaurant Corporation v. N. LR.B., 481 F.2d 75 (C.A. 2, 1973);
N.LR.B. v. Scoler's Incorporated, 466 F.2d 1289 (C.A. 2, 1972); N.L.R.B. v.
Hendel Manufacturing Company., Inc., 483 F.2d 350 (C.A. 2. 1973); N.L.R.B.
v. V & H Industries, Inc., 433 F.2d 9 C.A. 2, 1970).
1090
THE BACKSTAGE RESTAURANT
acts of vandalism which were committed upon its property
by persons unknown. Such evidence does not amount to a
Laura Modes defense 13 and may not be relied upon here to
defeat the issuance of a bargaining order. Donelson Packing
Co., Inc., 220 NLRB 1043 (1975); John Dory Boat Works,
Inc., 229 NLRB 844 (1977).
Upon the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I make the
following recommended:
ORDER 14
The Respondent, O & H Rest., Inc., trading as The
Backstage Restaurant, New York, New York, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize Chefs, Cooks, Cafeteria, Food,
Beverages, and Service Employees Union, Local 22, Hotel
and Restaurant Employees and Bartenders International
Union, AFL-CIO, as the duly designated exclusive
collective-bargaining representative of all of the Respon-
dent's regular full-time kitchen employees, exclusive of all
other employees, part-time employees, guards, and supervi-
sors as defined in the Act.
(b) Discouraging membership in or activities on behalf of
Chefs, Cooks, Cafeteria, Food, Beverages, and Service
Employees Union, Local 22, Hotel and Restaurant Em-
ployees and Bartenders International Union, AFL-CIO,
by discharging employees or otherwise discriminating
against them in their hire or tenure.
(c) Coercively interrogating employees concerning their
union activities or the union activities of other employees.
(d) Paying employees in order to obtain information
concerning the union activities and sentiments of employ-
ees.
(e) Offering employees money in order to induce them to
vote against the Union.
(f) Threatening employees with discharge in order to
discourage their union activities.
(g) Transferring employees to other locations in order to
discourage unionization.
(h) By any other means interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them by Section 7 of the Act.
'3 Laura Modes Company. 144 NLRB 1592(1963).
14 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 designed to
effectuate the purposes and policies of the Act:
(a) Upon request, bargain collectively with Chefs, Cooks,
Cafeteria, Food, Beverages, and Service Employees Union,
Local 22, Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO, as the exclusive collective-
bargaining representative of all of the Respondent's full-
time kitchen employees, exclusive of all other employees,
part-time employees, and all supervisors as defined in the
Act, and, if an agreement is reached, embody the same in a
signed written contract.
(b) Offer Jose Antonio Alves immediate and full
reinstatement to his former position or, in the event that his
former position no longer exists, to substantially equivalent
employment, without prejudice to his seniority or other
rights previously enjoyed, and make him whole for any loss
of earnings he has suffered because of the discrimination
practiced against him, in the manner described above in
the section entitled "Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll and other records necessary to analyze and
compute the amounts of backpay due under the terms of
this Order.
(d) Post at its New York, New York, place of business
copies written in English and in Spanish of the attached
notice marked "Appendix."'5 Copies of said notice, on
forms provided by the Regional Director for Region 2,
after being duly signed by a representative of the
Respondent, shall be posted immediately upon receipt
thereof and shall be maintained by the Respondent for 60
consecutive days thereafter, in conspicuous places, includ-
ing places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 2, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
Insofar as the consolidated complaint alleges matters
which have not been found herein to be violations of the
Act, the consolidated complaint is hereby dismissed.
15 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
1091