Panchito's

National Labor Relations Board - Board Decisions

Feb 10, 1977

228 N.L.R.B. 136 (N.L.R.B. 1977)

136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hambre Hombre Enterprises , Inc., d/b/a Panchito's
and Bartenders and Culinary Workers Union,
Local 595, affiliated with Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO. Cases 20-CA-9844 and 20-RC-12524
February 10, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On September 8, 1975, Administrative Law Judge
William J . Pannier III issued the attached Decision in
this proceeding. Thereafter, the Acting General
Counsel, hereafter referred to as General Counsel,
filed exceptions and a brief, and Respondent filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge to the
extent consistent herewith.
1. The General Counsel excepted to the Adminis-
trative Law Judge's finding that "a preponderance of
the evidence does not support the allegation that
[employee Michael] Hull has been discharged for
unlawful considerations." We agree with the General
Counsel, and find that Hull was unlawfully dis-
charged in violation of Section 8(a)(3) of the Act.
On January 4, 1975, Hull, a bartender, was present
at a union meeting of Respondent 's employees where
he initiated and raised the loudest objections to
Supervisor Patricia O'Neil's presence at that meeting.
On January 6, Hull was told by O'Neil "to refrain
from talking about the Union in any way or manner."
Hull replied that he had been telling another bartend-
er about the January 4 meeting, and that he had a
right to talk about the meeting under the Federal
labor act. This occurred within the hour before the
end of Hull's shift, and in the presence of two
customers and the other bartender . Hull was dis-
charged later that day after O'Neil told Respondent's
i The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge . It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd . 188 F 2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 The General Counsel excepts to the Administrative Law Judge's
findings that employee Robert W. Haws was not unlawfully discharged.
Although we acknowledge that that conclusion is not wholly free from
doubt, we agree with the Administrative Law Judge , for the reasons stated by
228 NLRB No. 18
part owner and vice president, Arthur G. Lopez,
about her confrontation with Hull. At the representa-
tion case hearing, in Case 20-RC-1 2524, on January
13, Lopez admitted that it was partly because of
O'Neil's run-in with Hull over his union activities that
Hull was terminated.3
The circumstances of Hull's discharge leave us no
choice but to conclude that it was for unlawful
reasons . Most telling is its timing, 2 days after the
Union's organizational meeting at which Hull object-
ed to the presence of Supervisor O'Neil and the same
day that he was reprimanded by O'Neil for talking
about the Union. In any event, Lopez' admission that
Hull's discharge was partially motivated by this
discussion with O'Neil is sufficient in and of itself to
find a violation.4 In this connection, we find no basis
for the Administrative Law Judge's apparent conclu-
sion that Hull's activity of talking about the Union
during working time on Respondent's premises and
in the presence of customers was not protected, citing
N. L. R. B. v. May Department Stores Company, 154
F.2d 533,537 (C.A. 8, 1946). The Administrative Law
Judge's reliance on this case is misplaced, as there is
no evidence that Respondent had a no-solicitation
rule in effect. The existence of such a rule was the
foundation on which the decisions of the Board and
court in May Department Stores turned. Consequent-
ly, we find that Michael Hull II was discharged in
violation of Section 8(a)(3) of the Act. Accordingly,
to remedy that violation we shall order that Respon-
dent offer him immediate reinstatement to his former
job or, if that job no longer exists, to a substantially
equivalent one, and make him whole for any loss of
earnings that he may have suffered by reason of the
discrimination practiced against him by payment to
him, less interim earnings , of backpay from the date
of his discharge until the date of offer of
reinstatement to him, with interest at 6 percent per
annum.
2. The Administrative Law Judge concluded that
the Respondent's unlawful surveillance was sufficient
to set the election aside but not "serious and
substantial" enough to warrant the issuance of a
bargaining order. Our additional finding that Re-
spondent violated Section 8(a)(3) of the Act by its
discharge of employee Hull compels a different
conclusion, however.
him, that the General Counsel failed to establish by a preponderance of the
evidence that Haws was discnminatonly terminated from Respondent's
employment.
3 The fact that the above-stated evidence is taken from the transcript of
the representation case hearing makes it no less a part of the record in this
consolidated proceeding , especially since that transcript was admitted as an
exhibit herein.
4 "[A ]n employer violates the Act if he discharges an employee because of
the employee's union membership or activities , even if another contempora-
neous reason for discharge exists." Colonial Lincoln Mercury Sales, Inc., 197
NLRB 54,58 (1972).
PANCHITO'S 137
In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969), the Supreme Court stated the general princi-
ple applicable to the issuance of bargaining orders.
The Court affirmed the Board's authority to issue a
bargaining order if the employer's unfair labor
practices are of such a nature that their coercive
effects cannot be eliminated by the application of
traditional remedies, with the result that a fair and
reliable election cannot be held. The Court specifical-
ly approved the appropriateness of a bargaining order
even "in less extraordinary cases marked by less
pervasive practices which nonetheless still have a
tendency to undermine majority strength and impede
the election processes." 5 We find that the latter test
has been met in this case.
Hull's discharge came close on the heels of the
union meeting of January 4 and almost immediately
after O'Neil's admonition to Hull to stop his union
activities-a warning which was openly made to him
in front of another employee, as well as customers.
The precipitous nature of Hull's discharge must have
brought his termination to the attention of the other
employees, even if he himself did not do so. In these
circumstances, Hull's discharge had a far-reaching
effect, the meaning of which could not have been lost
on them: support the Union and lose your job.
Furthermore, the coercive impact of his discharge
was later reinforced and increased in the eyes of the
employees by Respondent's blatant surveillance of a
subsequent union meeting. That event made the
employees only too aware of the fact that their
employer, armed with the knowledge of their union
activities gleaned from such unlawful conduct, was
then in a position to accord to them the same fate as
befell Hull. Consequently, we find that the gravity of
Respondent's unlawful conduct, which touched most
if not all the employees, cannot be dispelled by our
usual remedy for such offenses so as to render likely a
reliable election reflecting the free choice of Respon-
dent's employees. We have, therefore, examined the
record to ascertain whether the Union represented a
majority of the employees in the unit sought to
represent.
Twenty-seven employees signed union authoriza-
tion cards. All of these cards were signed between
December 13 and 19, 1974, and are in evidence. Even
if the one which did not include Respondent's name
is excluded, the remainder represent more than a
majority of the 44 employees in the unit. We
conclude, in light of our findings above, that the
authorization cards executed by a majority of the
5 Gissel, supra at 614.
6 Trading Port, Inc, 219 NLRB 298 (1975).
7 Beasley Energy, Inc., d/b/a Peaker Run Coal Company, Ohio Division
#1, 228 NLRB 93 (1977). In that case, a majority of this Board, for
reasons fully explicated there , concluded that a demand for recognition is
employees in the unit in favor of the Union are a
more accurate measure of the free and uncoerced
desire on the issue of representation than a second
election would be. Accordingly, we conclude that the
Respondent's bargaining obligation arose as of
January 6, 1975, the date it embarked, through Hull's
discharge, on its course of unlawful conduct,6 and we
shall order it presently to bargain with the Union,
upon request, concerning any term and condition of
employment, or change thereof, as to which it would
have been required to bargain had the Union become
the bargaining representative on that date.?
3. We have concluded that the unfair practices
found herein have rendered the holding of a fair
election unlikely and in fact undermined the Union's
majority. Therefore, we shall set aside the election in
Case 20-RC-12524 and order that the petition
therein be dismissed, and, as set forth above, we shall
issue a collective-bargaining order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Hambre Hombre Enterprises, Inc., d/b/a Panchito's,
Walnut Creek, California, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Engaging in surveillance of employees' activities
on behalf of any labor organization.
(b) Discharging any employee because of his union
activity or support or concerted activity protected by
the Act.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the purposes of the Act:
(a) Upon request, recognize and bargain with the
Bartenders and Culinary Workers Union, Local 595,
affiliated with Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, as the
exclusive representative of all the employees in the
bargaining unit described below, and if an under-
standing is reached, upon request, embody such
understanding in a signed agreement:
All employees of the Employer at its Walnut
Creek, California, location, excluding office cleri-
cal employees, confidential employees, guards,
and supervisors as defined in the Act.
not a factor entering into the determination of whether a bargaining order
should issue, and, further, that the absence of a finding of an 8(a)(5) violation
does not preclude the issuance of such an order from the time an employer
embarks on its unlawful course of conduct.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Offer to Michael Hull II immediate and full
reinstatement to his former job or, if that job no
longer exists , to a substantially equivalent position,
without prejudice to his seniority or other rights and
privileges, and make him whole for any loss of
earnings or benefits he may have suffered by reason
of the discrimination against him from January 6,
1975, until the date of said offer with reimbursement
to be computed as provided in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
(c) Preserve and, upon request, make available to
the Board or its agents , for examination and copying,
all payroll records, social security payment records,
timecards , personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Post at its Walnut Creek, California, place of
business copies of the attached notice marked "Ap-
pendix."s Copies of said notice, on forms provided by
the Regional Director for Region 20, after being duly
signed by Respondent's authorized representative,
shall be posted by Respondent 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 insure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges unfair labor
practices not found herein.
IT IS FURTHER ORDERED that the election in Case
20-RC-12524 be, and the same hereby is, set aside,
and that the petition in Case 20-RC-12524 be
dismissed.
MEMBER FANNING, concurring in part:
I agree with the majority's decision in this case,
including the finding that employee Hull was dis-
charged in violation of Section 8(a)(3) and that a
bargaining order is necessary in view of the Employ-
er's unfair labor practices.
However, in the absence of evidence that the Union
demanded and the Employer refused to bargain, I
cannot agree that the Respondent had a "bargaining
obligation" on January 6, 1975. Nor is this my
understanding of the Board's decision in Trading Port
Inc., supra, upon which the majority relies. In that
case, unlike the instant case, a violation of Section
8(a)(5) was found and therefore it was proper to hold
that the Respondent had unlawfully refused to
bargain at a prior date. My views with respect to
N. L.. R.B. v. Gissel Packing Co., supra, as that decision
relates to the requirement that the Board find a
violation of Section 8(a)(5) in an appropriate case are
set forth in the dissenting opinion in Elm Hill Meats
of Owensboro, Inc., 213 NLRB 874 (1974), and will
not be repeated here. Where, as here, no violation of
Section 8(a)(5) or (1) has been, or can be, found with
respect to Respondent's failure to accord recognition
to the Union, I do not believe we are empowered to
order bargaining as to past unilateral decisions and
actions. See my concurring opinion in Beasley Ener-
gy, Inc., d/b/a Peaker Run Coal Company, Ohio
Division # 1, 228 NLRB 93 (1977).
8 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals , the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act, as amended,
gives all employees the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a represen-
tative they choose
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all such activity
except to the extent that the employees'
bargaining representative and employer have
a collective-bargaining agreement which im-
poses a lawful requirement that employees
become union members.
WE WILL NOT engage in surveillance of your
activities on behalf of Bartenders and Culinary
Workers Union, Local 595, affiliated with Hotel
and Restaurant Employees and Bartenders Inter-
national Union, AFL-CIO, or on behalf of any
other labor organization.
WE WILL NOT discharge any employee because
he engaged in union or concerted activity for the
purpose of collective bargaining or other mutual
aid or protection.
WE WILL NOT in any other manner interfere
with , restrain, or coerce our employees with
respect to any of their rights set forth above which
are guaranteed by the National Labor Relations
Act.
PANCHITO'S
WE WILL offer to Michael Hull II immediate
and full reinstatement to his former job or, if it no
longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other
rights and privileges, and WE WILL pay him for
any loss of pay he may have suffered because we
discharged him.
WE WILL, upon request, recognize and bargain
collectively with Bartenders and Culinary Work-
ers Union, Local 595, affiliated with Hotel and
Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, as the exclusive collec-
tive-bargaining representative of our employees in
the following appropriate unit, and if an under-
standing is reached, upon request, embody such
understanding in a signed agreement:
All our employees at our Walnut Creek,
California, location, excluding office clerical
employees, confidential employees, guards,
and supervisors as defined in the Act.
HAMBRE HOMBRE
ENTERPRISES, INC.,
D/B/A PANCHITO'S
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge:
These cases were heard by me at San Francisco, California,
on July 22, 1975. The complaint and notice of hearing in
Case 20-CA-9844 was issued on April 16, 1975, by the
Acting Regional Director for Region 20 of the National
Labor Relations Board, on the basis of an unfair labor
practice charge filed on January 8, 1975, as successively
amended on January 20, February 3, and April 9 and 17,
1975, and alleges violations of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, 29 U.S.C. Sec.
151, et seq., herein called the Act. The said Acting Regional
Director has also consolidated for hearing with these unfair
labor practice allegations the issues presented by the
Union's objections to election by a Supplemental Decision;
Order Consolidating Cases; and Notice of Hearing in Case
20-RC-12524, dated April 21, 1975.
All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross- examine
witnesses , and to file briefs. Based upon the entire record,
upon the briefs submitted on behalf of the General Counsel
and Respondent-Employer, and upon my observation of
the demeanor of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
139
Hambre Hombre Enterprises, Inc., d/b/a Panchito's,
herein called Respondent, is a California corporation with a
principal place of business located in Walnut Creek,
California, where it has engaged in the operation of a retail
bar and restaurant since October 15, 1974.i The parties
stipulated that projected on a 12-month period beginning
on October 15, Respondent, in the course and conduct of
its business operations , will receive gross revenues in excess
of $500,000 and in its answer to complaint, Respondent did
not deny the allegation that projected on a 12-month period
beginning October 15, Respondent, in the course and
conduct of its business operations, will purchase and
receive goods and materials valued in excess of $5,000 from
companies which, in turn, purchased these goods and
materials directly from points outside the State of Califor-
nia.
On the basis of these facts, the parties stipulated, and I
find, that Respondent is, and at all times material herein
has been, an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Bartenders and Culinary Workers Union, Local 595,
affiliated with Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, herein called
the Union, has been at all times material herein a labor
organization within the meaning of Section 2(5) of the Act.
III. ISSUES
1. Whether Patricia O'Neil is a supervisor within the
meaning of Section 2(11) of the Act and, if so, whether
Respondent violated Section 8(a)(1) of the Act by virtue of
her attendance at an employee meeting conducted by the
Union on January 4, 1975.
2. Whether Respondent, through part owner and Vice
President Arthur G. Lopez and part owner and President
Donald L. Yakel, engaged in surveillance of employees'
activities on behalf of the Union on January 18, 1975, and,
if so, thereby violated Section 8(a)(1) of the Act.
3. Whether Respondent discharged Robert W. Haws
and Michael Hull II because of their membership in or
activities on behalf of the Union, or because they engaged
in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, thereby
violating Section 8(a)(3) and (1) of the Act.
4. Whether the above-listed conduct, if it occurred,
constituted conduct sufficient to warrant setting aside the
election conducted in Case 20-RC-12524 on February 26,
1975.
5. Whether the unfair labor practices committed by
Respondent are so serious and substantial in character and
effect as to warrant entry of a remedial order requiring
Respondent to recognize and bargain with the Union.
I Unless otherwise stated , all dates occurred in 1974
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. MATERIAL FACTS
A. Discharge of Robert W. Haws
Robert W. Haws was one of the original employees
employed by Respondent when it opened for business on
October 15. As a cook, Haws reported to Jesus Jimenez,
who was characterized during the representation hearing in
Case 20-RC-12524 as the "Number One Cook" by Arthur
G. Lopez, part owner and vice president of Respondent.2 In
December Haws received a wage increase from Lopez who,
it is undisputed, said that he "had future plans" for Haws
and was giving him the raise because Haws had been doing
a better job. However, admitted Haws, Lopez also said
during this conversation, "that there was a few things I
could pick up on." Jimenez testified that he had been aware
that Haws had received a raise and that to his knowledge
none of the other cooks had received a raise at that time.
It was during that same month, December, that Haws
became active on behalf of the Union and in support of its
campaign to organize Respondent's employees, he signed
an authorization card and, between December 13 and 19,
distributed and collected similar cards executed by 26 of
Respondent's employees. Haws testified that, at the time
that he had been engaging in this activity, all of the
management people had been present at the restaurant and
bar "most of the time" and he further testified that Patricia
O'Neil and Mary Lopez, who were found to be supervisors
in the Decision and Direction of Election issued on
February 5, 1975, in Case 20-RC-12524, were "standing on
the other side" of the cook's line when he passed out "a
couple of cards." However, he did not testify, nor did any
other witness, that O'Neil and Mary Lopez had actually
observed what he was doing or even that they had been
looking in his direction at the time he had distributed these
cards. In fact, the only testimony concerning the circum-
stances in which a particular card had been distributed was
that of waitress Julie Woollett, who had signed a card on
December 16 and who testified that at that time Haws had
cautioned her "to keep it very quiet, not to tell Patty or Mr.
Lopez, or Mr. Yakel, or Mary Lopez; or . . . he didn't trust
the bartenders too well either at that time, especially
Steve." 3 Beyond this, there is no evidence that any official
of Respondent ever spoke to Haws or to any other
employee concerning the cards or the Union's organizing
drive.
Haws testified that he had had a cold through the
holidays and that on Sunday, December 29, Lopez had
2 Respondent did not deny the allegation in the complaint that Lopez was
a supervisor within the meaning of Sec. 2(11) of the Act and an agent of
Respondent within the meaning of Sec. 2(13) of the Act.
3 The "Mr . Yakel" referred to is Donald L. Yakel, whose status was
alleged in the complaint to be that of part owner and president of
Respondent . This was not denied nor were the further allegations that Yakel
was a supervisor within the meaning of Sec. 2(11) and an agent of
Respondent within the meaning of Sec. 2(13) of the Act.
4 No doctor's excuse was produced at the hearing.
5 On the evening of January 2, 1975, cocktail waitress Tracy Welch, on
leave of absence following hospitalization , went to the restaurant where she
agreed with Venette Feldstein and Woollett that Lopez, whom the three
respected highly, should be advised of the organizing campaign prior to a
meeting which the Union had scheduled for January 4, 1975, described more
fully infra. Partly by telephone and partly by conversation during an early
morning visit to Lopez' home , the three women described the events of the
released him early from work because he had become ill.
He was unable to recall if he worked the following day,
Monday, December 30. He was scheduled to work on New
Year's Eve, but he testified that during the morning,
possibly "around noon," he telephoned Respondent and
told O'Neil that he was sick and did not intend to report at
4 p.m. when his shift was scheduled to commence. O'Neil,
testified Haws, said that "anybody that called in sick would
be fired over the holidays" and, after Haws again asserted
that he was ill, suggested that Haws call Jimenez or Lopez,
neither of whom was apparently available at that moment.
Haws testified that he responded to this suggestion by
telling O'Neil "I was in a pay phone and I wasn't going to
be running back and forth to the pay phone to call her, and
that was the end of it." On the following afternoon when
Haws reported for work, Lopez immediately said that Haws
was fired and despite Haws' pleas that he had been ill, that
he had been unaware of the rule that Respondent had
intended to discharge anyone who had been ill over the
holidays, and that he had a doctor's excuse, Lopez said that
he did not want to discuss the matter.4
Lopez testified that he had had "no knowledge of any
union activity in the restaurant" at the time of the events of
December 31 and that it had not been until the morning of
January 3, 1975, that he had learned of activity on behalf of
the Union at Respondent. 5 However, on cross-examina-
tion, Lopez acknowledged that in late November he and
Yakel had been visited by Union President and Organizer
Walter P. Holler and while Lopez did not recall Holler's
precise words, he testified that it had been obvious that
Holler desired to represent Respondent's employees. It is
also worthy of note that the petition in Case 20-RC-12524
was filed on December 23 and that by covering letter dated
December 24, the then Regional Director for Region 20
transmitted a copy of that petition to Respondent. Lopez
testified that he could not recall when he had received this
letter and interruption by his counsel precluded a meaning-
ful answer to questioning on cross-examination as to
whether it was not probable that an item mailed from San
Francisco on December 24 to Walnut Creek, approximate-
ly 30 miles away, would not have been received on some
date prior to January 3, 1975.
Lopez testified that there had been a multitude of reasons
for his decision to terminate Haws, but that the absence of
New Year's Eve had constituted "the last straw."s With
regard to the latter, he testified that O'Neil had reported to
him that Haws had telephoned at 4 p.m. on December 31,
had said that he did not intend to report because he had a
campaign to Lopez, including the prominent role which Haws had been
playing. Woollett described Lopez' reaction to what he was being told as one
of disbelief and surprise and she testified that during the course of the
conversation , Lopez had asked such questions as how the campaign had
gotten started , how many people were involved and "if it was really a big
thing," and whether Woollett was going to the Union's meeting and how she
felt about it - to the latter, Woollett testified that she had replied that she
was going to the meeting because she wanted to know what was going on.
She also testified that Lopez did not try to discourage her from going nor did
he ask her to report back to him on what had taken place. Welch testified
that Lopez had said that he was very surprised, that he had not heard any
rumors about the Union's campaign and that this had been the first time that
it had been brought to his attention.
6 In a preheanng affidavit , Lopez stated : "Haws' discharge was based
primarily on his failure to report to work on New Year's Eve. Haws was the
only employee who called in sick on New Year's Eve."
PANCHITO'S 141
hangover from drinking the previous night, and had
rejected her suggestion that he discuss the matter with
Jimenez. O'Neil testified that when Haws called Haws had
said that he was hung over due to the amount of drinking
that he had done at a party on the previous night, and that,
when she had pointed out that she would have to report this
to Lopez and suggested that Haws speak with Jimenez,?
Haws had retorted that he did not want "to talk to anybody
about it" and had hung up. During this conversation,
testified O'Neil, Haws had not said where he was calling
from. Haws denied specifically having told O'Neil that he
had gotten drunk the night before or that he was hung over
and sick from being drunk and could not report. He did
not, however, deny having told Woollett on the night of
December 30 that he did not intend to report for work as
scheduled on New Year's Eve because "I want to party like
everyone else."
As stated above, Lopez mentioned a number of addition-
al reasons for arriving at the decision to terminate Haws.
Thus, he testified that Haws had reported late for work on
three occasions in December because of incidents involving
drinking; that Haws had been drinking on the job and had
traded steaks from the kitchen for shots of tequila from the
bar; that Haws' work had begun to disintegrate in Decem-
ber leading to complaints from both Jimenez and other
cooks; that Haws had reported for work with alcohol on his
breath and that it had been on his breath while working;
and that Haws had expressed the opinion that he was
seriously considering getting fired so that he could collect
unemployment compensation which would be as remunera-
tive as working for Respondent.
Turning first to the contention regarding Haws' three
tardinesses in December , Lopez testified that on one of
these occasions, December 9, he personally inquired of
Haws about the matter and it is undenied that at that time
Haws said that he had been late because he had encoun-
tered difficulty getting bail money from his father-in-law.
Lopez testified that of the other two tardinesses one was
reported to him by O'Neil and the other by Jimenez. Both,
testified Lopez, involved situations where he had been told
that Haws had been tardy because he had been in jail for
"drunk driving or fighting or something like that" and had
experienced trouble getting bailed out on time for work.
However, Lopez did not testify concerning the time that he
had received these reports and while both O'Neil and
Jimenez testified concerning incidents similar to those
described by Lopez, there was no testimony that they had
reported these matters to Lopez prior to the time that Haws
was discharged. Moreover, while O'Neil testified that she
had reported by telephone to Jimenez that Haws had not
7 While O'Neil testified that, consistent with normal practice , Lopez had
posted a notice instructing employees that they would be terminated if they
failed to report on New Year 's Eve, this was not corroborated by Lopez, who
testified only that he had told O'Neil that any employee who did not report
as scheduled would be fired . Beyond this , Lopez testified that employees
knew that they were supposed to meet their schedule commitments and that
he did not know if "an additional message " had been delivered to that effect
prior to New Year's Eve.
O'Neil also testified that signs had been put up regarding the scheduling
commitments for other holidays, but no such signs were produced at the
hearing and when she was pressed concerning the content of the sign
allegedly posted before Christmas , she became somewhat evasive, testifying
that she did not know when the sign had been posted or what it said. In
come to work on an early December Sunday when,
according to O'Neil, Haws finally arrived with the excuse
that he had been unable to obtain bail money earlier from
his father-in-law, Jimenez testified that on both occasions
in December, prior to New Year's Eve, when Haws had
been late, the latter had followed the standard procedure
and had contacted Jimenez to report that he would be
late.8 Jimenez also testified that on one of these
occasions, which he believed to be different from the one to
which O'Neil made reference, Haws called from jail to say
that he would be late as he was waiting for bail. Haws
testified that there had been one or two occasions in
December, prior to New Year's Eve, when he had been
absent at the beginning of his shift, but he unequivocally
denied both being absent because he had been drunk and
being absent because he had been in jail for being drunk.
He also flatly denied being in jail in December for being
drunk. Yet, when he was asked if on December 9 he had
reported to Respondent that he had been arrested for being
drunk and was waiting for his father-in-law to bail him out,
Haws answered: "No, not that I recall; I don't. No."
Similarly, when asked if, to excuse his tardiness on one
occasion, he had reported to Jimenez that he had been late
because of having to obtain bail to get out of jail, Haws
replied: "Not that I remember, no."
Lopez admitted that he had not personally observed
Haws drinking while on duty and so far as the record
discloses, Lopez did not observe Haws trading steaks for
shots of tequila. Further, while he testified that he had been
aware of this activity at the time that he had discharged
Haws , Lopez did not testify how, when, or from whom he
had gained this knowledge. Only two witnesses testified
concerning the subject. Woollett testified that she had
heard that bartenders had been sending drinks to Haws and
that she thought that she had seen it going on at one time.
However, she did not explain what she meant by the latter
comment and she admitted that at no point had she ever
delivered drinks to Haws. Beyond this, she did not testify to
having discussed this subject with Lopez prior to Haws'
discharge. Linda Bresciani did testify that on some of the
Monday nights when she had been serving as a cocktail
waitress, one of the bartenders had given her shots of
tequila for Haws in return for receiving something to eat
from Haws. Yet, Bresciani testified to only one occasion
when Haws actually requested that a drink be brought to
him, she made no mention of Haws ' offering to provide
anyone with a steak in return for that drink, and she made
no mention of discussing these incidents with Lopez or any
addition , her recollection of where the sign had been purportedly posted was
not altogether clear : "I believe it was on the bulletin board. "
8 Lopez testified that , during a meeting with employees when the
restaurant first opened, he had instructed them to contact their department
head in the event that they would be absent. Jimenez testified that he had
instructed the cooks to contact him personally in such situations. By
contrast, Haws testified that he had never been aware of such a rule and
that, when they were unable to report as scheduled, employees simply called
Respondent and spoke with whomever happened to answer the phone.
However , Haws also testified : "Sometimes we talked to Jess. Whoever
answered the phone they would put us on. Sometimes he was in the kitchen
and he was busy so we talked to anybody else. I don 't know what other
people did."
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other representative of Respondent prior to Haws' termina-
tion.
Similarly, while Jimenez testified that there had been
several occasions when Haws had reported to work with
alcohol on his breath and that he had twice brought the
matter to Haws' attention, Jimenez did not testify that he
had ever discussed this matter with Lopez or with any other
official of Respondent prior to Haws' termination . In a like
vein, while there was uncontroverted testimony by both
O'Neil and Jimenez regarding comments by Haws to the
effect that he had made or could make more money on
"unemployment" than at Respondent, neither O'Neil nor
Jimenez testified that Haws had ever spoken of a plan to
engineer his own discharge so that he could receive such
funds. Nor did either of them testify to reporting Haws'
comments to Lopez prior to the termination of Haws.
A somewhat different situation is presented with respect
to the assertion that Haws ' performance declined in
December, leading Jimenez and cooks to complain about
Haws. While it is true that Respondent did not identify the
cooks who purportedly had complained about Haws and
did not produce any cooks to corroborate Lopez' testimony
in this regard, it is also true that Haws did not deny the
statement in Lopez' prehearing affidavit, brought out on
cross-examination of Lopez, that in December Lopez had
reprimanded Haws for "smoking on the job while he [sic ]
supposed to be working and his failure to pull his weight at
work." In fact, Jimenez did testify that in late November or
early December he had complained to Lopez that other
cooks had threatened to quit because Haws was not doing
his share of the work and "stepped out more often than
anyone else, to take a smoke break or drink a cup of
coffee." In addition, though not known to Lopez prior to
the discharge so far as the record discloses, Jimenez had
been disturbed because Haws was not performing assign-
ments and was not following the recipes properly.
Two independent events were raised by the General
Counsel in connection with Haws ' termination. First, when
Haws filed for unemployment benefits with the California
Department of Employment, he had been told that his
application for benefits was being contested by Respon-
dent . He explained that he had been ill and later he received
the benefits, being told by an agent of the State that as he
had had a legitimate excuse , he could not be fired.
The second matter involved Guy A. Grivet who, like
Haws, did not work on December 31, although scheduled
to do so. Grivet testified that he had gone to Tahoe for the
Christmas to pre-New Year's Eve period, but at his
mother's urging had telephoned his grandmother at 10 a.m.
on December 31, requesting that she telephone Lopez to
say that he would not be back as scheduled for New Year's
Eve, because the weather appeared inclement . Later, Grivet
was told by his grandmother that she had called Lopez and
told him that she did not think that Grivet would return in
time for his shift, since the weather was bad and Grivet's
mother did not want him driving back to Walnut Creek that
day. Lopez testified that he had received the call from
Grivet's grandmother on the morning of December 31, but
that this had not been the first call that he had received
from her, for 2 days earlier she had called and said that she
did not believe that Grivet "was going to be able to return
because of being snowed in or snowbound, some type of
problem in Lake Tahoe ...." She also stated during the
conversation, according to Lopez, that she wanted Lopez to
be aware of the situation so that he could have an alternate
to take Grivet's place should he be unable to return and she
promised to call later to advise Lopez of her grandson's
status. Thus, when she again called on December 31 to say
that Grivet would, in fact, not be able to return, Lopez
testified, Respondent did not experience a problem as it
had arranged for Grivet's shift to be covered.
Grivet was then called as a witness on rebuttal and he
testified that he had not directed his grandmother to make a
call prior to December 31 concerning his inability to return
from Tahoe, that December 31 was the only time that he
had ever asked his grandmother to make such a call , that he
had no reason to believe that she had called at any other
time, and that she had never told him that she had made
such a call prior to December 31. Then, for the first time,
Grivet testified that his grandmother had told him that
when she had telephoned Lopez on December 31 Lopez
had said that he knew some people who had just returned
from Tahoe and that the roads were "clear and open."
Grivet's grandmother was never called as a witness and the
failure to do so went unexplained. It is , however, manifest
that the road from Tahoe was "clear and open" for Grivet
testified that , notwithstanding the representation that he
induced his grandmother to make to Lopez, he did return to
Walnut Creek on December 31, arriving approximately 1
hour before his shift was scheduled to commence. Yet, he
did not report for work and on the following day, when he
arrived at work and O'Neil asked if he had had "a nice time
being snowed in in Tahoe," he replied that he did and said
nothing about the fact that he had actually returned to
Walnut Creek the prior afternoon.
B. The January 4, 1975, Imperial Room Meeting
On January 4, 1975, the Union conducted a meeting of
Respondent's employees at the Imperial Room , a restau-
rant on California Boulevard in Walnut Creek. The meeting
was attended by hostess Patricia O'Neil, who was found to
be a supervisor in the Decision and Direction of Election
issued in Case 20-RC-12524, on February 5, 1975. The
basis for this conclusion was that the record in the
representation proceeding disclosed that O'Neil was one of
the individuals who employees were informed would be in
charge in the absence of the manager, that O'Neil received
$1 an hour more than most of the other hostesses, and that
O'Neil was one of the individuals whom employees could
notify if they were sick or had to leave work when the
manager was not present at the restaurant.
There is no dispute concerning the events which trans-
pired during the course of the meeting, which was
conducted primarily by Union Organizer and President
Holler, who reviewed the benefits provided by the Union
and answered employees' questions as they arose during the
course of his presentation. Eventually there came a point
when some of the employees, particularly bartender Mi-
chael Hull, questioned the fact that O'Neil was in atten-
dance. Hull and O'Neil fell to arguing with the former
asserting that her presence had the effect of intimidating
employees who were present because she was a representa-
PANCHITO'S 143
tive of management and with O'Neil responding that she
was at the meeting of her own volition so that she could fmd
out about the Union for her own personal reasons.
Ultimately, Holler became involved in the dispute and he
testified:
I pointed out that it has been our philosophy in the past
that unless they are an owner or a member of the family
that owns the establishment if they actively engage in
the industry, we would bring them into the bargaining
unit.
I then pointed out that it was a little too late at that
time to even exclude Ms. O'Neil from the meeting for
the simple reason that she had sat there for a period of
time to be able to observe and hear the questions; and if
any damage had already been done it was over with,
and that by ordering her to leave the meeting it
wouldn't accomplish any more purpose.
Holler promised the employees that representatives of
management would not attend future meetings and permit-
ted O'Neil to remain until the conclusion of the meeting.
O'Neil denied that she had been instructed to attend the
meeting by Respondent and she denied discussing what
had taken place at the meeting with Lopez, Mary Lopez,
Yakel, or Jimenez.
She testified that she had learned of the meeting on the
preceding day when another hostess, she was not asked to
name which hostess, mentioned the December 31 letter that
the Union had sent to those employees who had signed
authorization cards inviting them to attend the meeting.
When O'Neil said that she had not received a letter, the
other hostess suggested that this may have been the result of
the fact that O'Neil worked lunches and the organizing had
been done in the evenings when O'Neil was not at the
restaurant. Then, testified O'Neil, the other waitress asked
her to attend9 and on the following afternoon she went to
the Imperial Room where she encountered Linda Bresciani
and waitress Kathy Dale and the three of them then went to
the meeting.
C. Discharge of Michael Hull II
Hull did not appear as a witness at the hearing.10 As
noted above, the record in this matter does show that he
had challenged O'Neil's attendance at the Imperial Room
on January 4, 1975. The record in the preelection hearing in
Case 20-RC-12524 discloses that Hull, a bartender, was
terminated 2 days after the Imperial Room meeting and
Lopez, when he appeared as a witness in that matter, agreed
that the termination was partly related to a "discussion"
9 Holler testified that he had been informed , although not asked by
whom, that O'Neil had been asked by "somebody" to attend the meeting.
10 At the commencement of the hearing , counsel for the Union moved for
a partial continuance or a severance with respect to Hull on the ground that
he would not return from Europe until "sometime in September " Certain of
the comments made in connection with the motion also indicated that it was
not altogether clear that Hull even intended to return at all. Counsel for the
General Counsel, whose responsibility it was to prosecute this matter, stated
that he did not join in the motion and counsel for Respondent opposed it on
the grounds that such a motion had not been made earlier, Respondent had
prepared its case, and witnesses had already taken time off to appear with the
result that, if the motion were granted , they would again have to take time off
that Hull had had with O'Neil and which the latter had
reported to Lopez.
Hull also appeared as a witness at the representation case
hearing in which he testified that he had commenced
working as a bartender at Respondent on October 15 and
that on January 6, 1975, at the bar, O'Neil had directed him
"to refrain from talking about the Union in any way or
manner," to which he had replied that he had been telling
the other bartender what had occurred at the Imperial
Room meeting and that he had a right to talk about the
Union. Hull also testified that during this confrontation
with O'Neil, Steve, the other bartender, and two customers
had been present.
D. The January 18, 1975, Imperial Room Meeting
By letter dated January 14, 1975, the Union notified the
employees who had signed authorization cards that there
would be another meeting at noon of the following
Saturday at the Imperial Room. It is undisputed that on
that Saturday Lopez and Yakel parked across the street
from the Imperial Room in Lopez' Jaguar at the time that
the meeting was scheduled to be conducted.1' Curvet,
arriving for the meeting, observed them and reported their
presence to Holler, who walked from the Imperial Room to
the Jaguar and admonished Yakel and Lopez for conduct
that might be unlawful and constitute an unfair labor
practice. Neither Lopez nor Yakel denied Holler's testimo-
ny that "Lopez stated that we weren't getting too good of a
turnout." Holler testified that he then returned to the
Imperial Room and commenced the meeting, but, as the
attendance was not as great as he expected, he again went
to the entrance of the Imperial Room where he observed
that Lopez and Yakel were still parked across the street.
Lopez testified that his reason for being parked across the
street from the Imperial Room that Saturday was that he
had heard, he could not recall the source, that a meeting
was to be held and while he assumed that it was the Union
that was going to conduct the meeting, he was unsure as to
who could attend. In this regard, Lopez testified at one
point "I was the day-to-day management and not only an
owner but an employee management part of the restau-
rant," and at another point "if it was going to be a meeting
discussing Panchito's and I was running the restaurant and
I was involved with it . . . that maybe I should be there and
discuss the thing with the union representatives and the
employees." Thus, Lopez contacted Yakel, who drove to
Respondent and, following a brief discussion of the matter,
the two of them drove to the Imperial Room. Both Lopez
and Yakel testified that they then sat in the Jaguar
discussing whether Lopez should attend the meeting until
to appear after Hull testified. Counsel for the Union conceded that he had
not earlier made such a motion, in effect, pursuant to Board' s Rules and
Regulations , Series 8, as amended , Secs. 102.16 and 102.24 In these
circumstances, I denied the motion "the administration ofjustice requires an
end to litigation at some point." Franks Flower Express, 219 NLRB 149, 150
(1975).
11 In an effort to demonstrate the restricted visibility of the Imperial
Room entrance from where Lopez and Yakel were parked, Respondent
introduced three photographs . While it would appear to be difficult to
discern images between the two points at issue, it should be borne in mind
that the photographs are reduced in scale
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Holler approached them. They testified that they saw no
employees enter or leave the Imperial Room and that they
were there for between 15 and 30 minutes. Lopez testified
that after Holler had spoken with them that they had "left a
short time afterward."
Both Lopez and Yakel testified that after leaving the
Imperial Room they had returned to Respondent. Both
denied that they returned thereafter that day to the
Imperial Room. However, Holler testified that approxi-
mately 15 minutes after he had observed the Jaguar for the
second time, he again went to the door of the Imperial
Room and this time he observed a silver Lincoln Continen-
tal parked "down the street." After ascertaining from the
employees that Yakel owned such a vehicle, Holler walked
down the street far enough to identify Lopez and Yakel
sitting in the Continental and then returned to the meeting.
Yakel admitted owning a silver Mark IV, but both he and
Lopez testified that Yakel had driven his 1974 Pontiac
station wagon that day.
V. ANALYSIS
A. Issue I
O'Neil was found to be a supervisor within the meaning
of Section 2(11) of the Act in the Decision and Direction of
Election in Case 20-RC-12524, from which review was not
requested . As Case 20-RC-12524 is one of the cases
involved in this matter, I find that the issue has already
been litigated and that the only party seeking to continue
contesting the matter is Respondent , who had that opportu-
nity during the preelection hearing. Accordingly, and as it
appears from an independent review of the record that
O'Neil is a supervisor, albeit one of not a very high level, I
find that O'Neil is a supervisor within the meaning of
Section 2(11) of the Act. Pittsburgh Plate Glass Company v.
N.LR.B., 313 U.S. 146 (1941).
Contrary, however, to the implication in the brief filed on
behalf of the General Counsel, the matter is not ended by
finding that O'Neil is a supervisor. The Board recently
stated in Fraley & Schilling, Inc., 211 NLRB 422 (1974), that
there had been no violation of the Act by virtue of a
supervisor's presence and participation in a union organiza-
tional meeting where that supervisor "attended the meeting
solely on his own initiative and with the knowledge and
consent of Respondent's other employees." (Id. at 402, fn.
2.) Similarly, in the instant matter , there was seemingly no
challenge to O'Neil's testimony that she had been invited to
attend the meeting by another hostess . Indeed , Holler
acknowledged that O'Neil had been invited to the meeting
by "somebody," and Bresciani corroborated O'Neil's
testimony that the two of them, accompanied by Kathy
Dale, had entered the Imperial Room together. Not until
the passage of a substantial time during the meeting did
Hull raise the issue of whether or not O 'Neil should attend.
And, notwithstanding the opposition to her continued
attendance by some of the employees once the matter was
raised, Holler did permit her to remain. Thus, as was the
situation in Fraley & Schilling, supra, O'Neil had attended
the meeting "with the knowledge and consent of Respon-
dent's other employees."
Also as was true in Fraley & Schilling supra, O'Neil, so
far as the record discloses, attended the meeting "solely on
[her] own initiative:' I have considered the possible
argument that an inference might be drawn from the
presence of Lopez and Yakel at the Union's next meeting
that O'Neil had been dispatched in the same manner and
for the same purpose on January 4, 1975. However, O'Neil
denied speaking with Lopez, Yakel, or any other represen-
tative of Respondent either prior to or after the union
meeting which she attended. Rather, she had been invited
to attend by another employee and she testified that she
had attended because of her own personal interest. In these
circumstances, I do not feel that the presence of Lopez and
Yakel at the next meeting, of itself, supports the inference
that O'Neil had been attending the January 4, 1975,
meeting as a spy for Respondent. Rather, I find that the
evidence is not sufficient to controvert O'Neil's assertion
that she had attended the meeting, as was true in Fraley &
Schilling, to satisfy her own interest.
A final point should be made regarding this matter. At
the time that O'Neil attended this meeting, her status as a
supervisor had not been established - in fact the preelec-
tion hearing did not take place until 9 days after the
meeting which O'Neil had attended. Although a supervisor,
she was not particularly one of high level and her classifica-
tion, like that of other employees invited to the Union's
meetings, was that of hostess. It is, accordingly, not
extraordinary for one in her position to believe that she
could attend such a meeting. Indeed, Holler admitted that
it was the Union's practice to seek representation of
supervisors, save those who are owners or related to owners.
Consequently, from the Union's point of view O'Neil was a
prospective member. In Western Sample Book and Printing
Co ., Inc., 209 NLRB 384 (1974), the Board stated at 385, fn.
1: "... an employer is not responsible for the antiunion
conduct of supervisors who are included in the bargaining
unit by stipulation of the parties in the absence of evidence
that the employer encouraged, authorized, or certified the
supervisors' activities ...." I do not view the distinction
between actual and prospective membership as being
particularly meaningful in this context and, accordingly,
Respondent would not be responsible for the attendance of
a prospective supervisor-member of the Union, absent
evidence, not present here, of specific direction or ratifica-
tion of O'Neil's attendance. The fact that employees may
have felt inhibited in their questioning due to O'Neil's
attendance would not affect this result, for the test to be
applied is an objective one. See Munro Enterprises, Inc., 210
NLRB 403 (1974). In any event, Haws admitted that
questions had been asked by "[a] lot of people. Almost
everybody." Consequently, I do not credit the generalized
testimony that O'Neil's presence inhibited the participation
of employees at that meeting.
Therefore, I find that Respondent did not violate Section
8(a)(1) of the Act by virtue of Patricia O'Neil's attendance
at the employee meeting conducted by the Union on
January 4,1975.
B. Issue 2
Contrasting the perfectly reasonable explanation for
O'Neil's presence at the first Imperial Room meeting was
PANCHITO'S 145
the patently absurd explanation advanced by Lopez and
Yakel to explain their presence at the Imperial Room
during the Union's midmonth meeting. Neither Lopez nor
Yakel appeared so naive as to truly wonder whether a labor
organization would desire the presence of owners at an
employee organizing meeting. In reciting his explanation
for his presence, Lopez displayed a tongue-in-check man-
ner which demonstrated even his own disbelief of what he
was saying. Indeed, so pressed to establish a reasonable
basis for his asserted quandary was Lopez that he based it
upon two different reasons - testifying at one point that he
was "an employee management part of the restaurant" and
at another point that as the restaurant which he ran was
being discussed, possibly his participation would be desir-
able. If he had truly believed either version, why did he not
also appear when the January 4, 1975, meeting had been
conducted? Certainly he was aware that it was to take
place; the early morning visit of Welch, Woollett, and
Feldstein had served to supply him with that information.12
Surely had he harbored doubt regarding the need for him to
attend such a meeting, it would have arisen at that point -
not later. Moreover, if the two owners were concerned
about the desirability of their attendance, why did they not
simply telephone the Union or go into the Imperial Room
to ask if their presence was desired? Why sit discussing the
matter for between 15 and 30 minutes when the answer lay
but a few lanes and a traffic island away? Why, also, did
they not explain their purported problem when reproached
by Holler for their presence?
The answer to these questions is that neither Lopez nor
Yakel had any doubts regarding their status as participants
at the meeting. They were there to ascertain how many
employees were attending - a point which, it is undenied,
Lopez raised when Holler came across the street to talk to
them . This observation also refutes any contention that
distance and traffic island vegetation obscured their pres-
ence. Moreover, Grivet certainly had no problem discern-
ing their presence. Even considering the reduced scale in
the photographs, it is possible to discern Lopez' vehicle
from the picture taken from the Imperial Room entryway.
Holler impressed me as a forthright individual whose
honesty was demonstrated by his testimony in connection
with O'Neil's attendance at the earlier meeting. The fact
that some of that testimony did not advance the Union's
interests must have been obvious to him. Yet, he told the
truth. Conversely, neither Lopez nor Yakel, when testifying
about their presence near the Imperial Room, impressed me
as being candid and their explanation is simply not
believable. Thus, I credit Holler's testimony that Lopez and
Yakel first parked across the street in Lopez' Jaguar and
then returned in Yakel's Mark IV to continue their
12 Having listened to two witnesses testify concerning the early morning
visit to Lopez and having even objected to and questioned the purpose of this
testimony, leading to a degree of curtailment of the testimony concerning
what had taken place that morning, counsel for the General Counsel then
followed his motion to conform the pleadings to the proofwith a motion to
amend the complaint to allege Lopez' questions that morning as violations of
Sec. 8(a)(1) of the Act I denied the motion.
In Retail Store Employees Union Local No. 400, Retail Clerks International
Association, AFL-CIO [C W.F. Corporation] v. N L.R.B., 458 F.2d 792, 793
(C.A.D.C., 1972), the court cautioned that all parties should be notified as
soon as possible where the General Counsel intended to amend a complaint.
Here, this admonition could have been heeded at a number of earlier stages
observation of the Imperial Room entrance. They both
admitted being aware that a union meeting with Respon-
dent's employees was to take place there and Lopez'
comment to Holler concerning the sparsity of employee
attendance disclosed their true objective in being present.
This, coupled with the absence of a valid purpose for their
presence, established that they were present to determine
the number and identities of the employees who were
attending the meeting.
Therefore, I find that Respondent, through Lopez and
Yakel, did engage in surveillance of employees' activities on
behalf of the Union on January 18, 1975, and that
Respondent thereby violated Section 8(a)(1) of the Act.
C. Issue 3
If one matter became quickly evident as the testimony
unfolded in this proceeding, it was that feelings appear to
have become intense respecting the discharge of Haws.
Thus, every witness who testified concerning the matter -
Grivet, Lopez, Jimenez, O'Neil, and Haws, himself -
appeared to be embellishing his or her testimony in an
effort to preserve and improve upon the position which the
individual witness supported. Nonetheless, several points
do emerge as a guide to resolution of the matter.
It is clear that Haws was the leading proponent in the
Union's campaign, that his discharge occurred within a
short time after he had solicited a substantial number of
employees' signatures on authorization cards, that his
discharge occurred within a month of having received a
wage increase which Lopez had coupled with a compliment
and an implied promise of a promotion, and that, like
Haws, Grivet had been absent on New Year's Eve, but that,
unlike Haws, Grivet had not been terminated for being
absent. These factors are indicia tending to show that
Haws' termination was occasioned by unlawful considera-
tions. However, there are other factors establishing a
contrary conclusion.
At no point prior to Haws' discharge is there evidence
that Respondent was aware of his activities on behalf of the
Union. Yet, employer knowledge of union activities is the
"threshold question" where a violation of Section 8(a)(3) is
alleged, since it is a "fundamental prerequisite" to estab-
lishing a discriminatory motivation. Bayliner Marine Corpo-
ration, 215 NLRB 12 (1974). See also Salant Corporation,
d/b/a Carrizo Manufacturing Co., Inc., 214 NLRB 171
(1974); Eastman Kodak Company, et al., 194 NLRB 220
(1971). True, Haws did testify that management personnel
had been present when he had distributed the cards and,
further, that Mary Lopez and O'Neil had been standing on
the other side of the cook's line when he had distributed "a
in this proceeding - when either of the two witnesses were testifying, when
Respondent rested , during rebuttal . To wait until virtually the last possible
moment in the hearing to do so had the effect of precluding full development,
particularly in light of the General Counsel's opposition , of circumstances
surrounding the surprised Lopez ' questioning in response to the information
being volunteered to him. Yet, it is clear that development of those
circumstances is essential to a determination of whether Lopez' questioning
of these three volunteers could be found coercive and, accordingly, a
violation of Sec. 8(ax1) of the Act . See, e.g., Flint Provision Co., 219 NLRB
523 (1975). Thus, having again considered the motion , I reaffirm my ruling in
this regard.
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
couple of cards." However, Haws did not testify that he had
been observed by any of Respondent's representatives
when he had been circulating the cards nor did he testify
that Mary Lopez or O'Neil had ever been looking in his
direction when he had passed out the cards on the cook's
line. In fact , it was not shown that it would have been
possible for Haws to have been seen from the other side of
the cook 's line.
It is most unlikely that Haws' activities were observed by
any official of Respondent. Certainly, Welch's and Wool-
lett's descriptions of Lopez' reaction to their early morning
disclosure of the employees' activities militate against a
finding that Lopez had been aware of that activity on an
earlier date. Obviously, Lopez was aware, from Holler's
November visit and from the representation petition
transmitted by the Regional Office,13 that the Union was
interested in representing Respondent 's employees, but
there is no evidence that he knew that this desire was
reciprocated by the employees , themselves . Beyond this,
only one employee testified to the specific circumstances
under which Haws had solicited signatures on cards and
Haws did not deny her testimony that she had been
cautioned "to keep it quiet, not to tell Patty or Mr. Lopez,
or Mr. Yakel, or Mary Lopez ...: ' Considering the
apparently covert manner in which this conversation
indicates that Haws distributed the cards, it is difficult to
infer that Respondent would possess knowledge of his
activities . See American Book Division, Litton Educational
Publishing Inc., 214 NLRB 413 (1974).
In a parallel vein , there is no evidence of any conduct by
Respondent, or by any of its officials, prior to Haws'
discharge that would serve as a basis for inferring that
Respondent must have become aware that its employees,
particularly Haws, were engaged in organizing activities.
There had been no interrogation of, or threats directed
toward, employees. There had not even been an appeal by
Respondent for the employees to refrain from supporting
the Union. In this posture, it would be difficult to conclude
that Respondent must have possessed knowledge of the
employees' activities , let alone those of Haws . Moreover,
though Respondent displayed an overabundance of nosi-
ness on January 18, 1975 , regarding the Union 's campaign,
at no point has any evidence been produced which would
support a finding that Respondent was hostile toward or
would be motivated to discharge employees because they
were supporters of the Union.
Turning to Respondent 's defense, it is clear that despite
the numerous acts of misconduct attributed to Haws, there
is no evidence that Lopez possessed knowledge of many of
these matters prior to terminating Haws . Thus, there is no
evidence that Lopez had been aware, if it happened, of
Haws receiving drinks from the bar while on duty, of Haws
reporting for work with alcohol on his breath, or of Haws'
comments comparing Respondent 's wages with the amount
that he could receive as unemployment compensation.
Further, there is no evidence that Haws traded steaks for
shots of tequila or that Haws had threatened to engineer his
13 Due to counsel for Respondent's interference with cross -exanunahon
of Lopez on this point, interference with overtones of suggesting an answer to
the witness , cross-examination on the point could not be pursued as
effectively as it might otherwise have been conducted. In view of this fact,
and inasmuch as the distance i nvolved is short and the Postal Service made a
own termination so that he could obtain unemployment
compensation, were that possible. I am, of course, aware of
the doctrine that where false or unsupported reasons are
advanced as a defense, an inference is warranted that there
was another reason for the action taken and, as it was not
set forth, that it was an unlawful reason. Shattuck Denn
Mining Corporation (Iron King Branch) v. N.LR.B., 362
F.2d 466,470 (C.A. 9, 1966). However, this doctrine is not a
per se rule applicable without regard to whether or not there
is other evidence that supports a conclusion that a dis-
charge was unlawful. See G. W. Davis Corporation, 202
NLRB 204, 205 (1973). In the instant case there is no
evidence that Respondent had been aware of Haws'
activities prior to his termination and there is no evidence
that Respondent harbored hostility toward the Union's
supporters sufficient to support the conclusion that it would
be motivated to discharge employees because of that
support.
Beyond these matters, there is evidence supporting many
elements of Respondent's defense, so that it is not utterly
baseless. Considering first Respondent's "last straw" event,
the New Year's Eve absence, it is evident from Haws' own
testimony that he had been scheduled to work, had called
O'Neil to report that he did not intend to work, and had
declined to speak with Jimenez. While the General Counsel
attacks the existence of the rule that employees who did not
report that evening would be discharged, Haws admitted
that during the telephone conversation, O'Neil had told
him that "anybody that called in sick would be fired over
the holidays." Thus, while I do not credit O'Neil's attempt
to improve Respondent's position by testifying to a posted
rule, testimony contradicted by Lopez, it is clear that
Respondent did have such a rule, for I find it unlikely that
O'Neil, having received an unexpected call from Haws,
would have the presence of mind to quickly dream up a
defense for Respondent. Indeed, had she done so, she could
not be certain that it would be needed, for Haws might have
become concerned by what she said and reported. Accord-
ingly, I am convinced that there was a rule that employees
who did not report on New Year's Eve would be dis-
charged, absent a bona fide excuse.
I am also convinced that there was a rule requiring an
employee to speak with his immediate supervisor if he did
not intend to report as scheduled. The only denial of
Respondent's contention in this regard was Haws' general-
ized testimony that employees spoke with whomever
answered the phone when they called in to report that they
would be absent. However, as noted in footnote 8, supra,
when pressed for specific details, Haws admitted that he
had no knowledge of what other employees did when they
made such calls and that when he had called, whoever had
answered the phone had put Jimenez on unless the latter
was busy, in which event someone else would take the
message . Accordingly, I am satisfied that this rule existed
and was understood by Haws. As he admitted refusing to
speak with Jimenez when this course was suggested by
number of pronouncements regarding the currency of deliveries during the
past holiday season, I feel an inference is warranted that Respondent had
received the copy of the petition transmitted by the Regional Office on
December 24, prior to December 31
PANCHITO'S
O'Neil , I find that Haws also violated this rule on New
Year's Eve.
True, Grivet did not report that night, but Lopez'
testimony regarding the two calls by Grivet 's grandmother
stands not effectively rebutted . Particularly unimpressive
was Gnvet's convenient testimony on rebuttal , after having
had the benefit of Lopez ' testimony on the point , that his
grandmother had reported to him the substance of her
conversation with Lopez and that the latter had questioned
Grivet's inability to return from Tahoe on the basis of some
friends ' report. Actually , the condition of the roads was
never the basis for Grivet's excuse - it was the sentiments
of Grivet's mother that had ostensibly led to the call , for she
did not want Grivet driving, assertedly , in view of the
weather . More important , at no point was the failure to call
Grivet's grandmother as a witness explained. This was a
crucial matter and warrants the drawing of an adverse
inference in light of its significance . Finally , it is also worth
noting that Grivet , while he then did return to Walnut
Creek in time to report for his shift , concealed his return on
December 31 and , when questioned by O'Neil , led her to
believe that he had remained in Tahoe, consistent with the
story which he had persuaded his grandmother to relate to
Lopez . I do not credit Grivet and I find that his grandmoth-
er did make two telephone calls to Lopez as the latter
recited when testifying. Accordingly , Grivet's absence on
New Year's Eve is not comparable to that of Haws.
I also find that O'Neil testified truthfully when she said
that during the telephone conversation , Haws had said that
he was too hung over to report for work . Haws did not deny
telling Woollett on December 30 that he did not intend to
report the following night so that he could "party like
everyone else ." While there is no evidence that Woollett
had relayed these remarks to Respondent prior to Haws'
termination , the event is consistent with O'Neil 's testimony
that Haws had said that his absence was connected with
drinking. Of course , O'Neil's testimony was that Haws had
said that he had been to a party already, whereas Haws had
told Woollett that he intended to go to a party. However,
this is not a substantial difference . Haws may have started
earlier than he had anticipated when he spoke with
Woollett . He may also have been using his condition as an
excuse even though he may not have been to a party at the
time that he telephoned O'Neil . An examination of Haws'
record during December appears to support the latter
conclusion for Lopez , O'Neil , and Jimenez each testified to
incidents where Haws had excused his tardiness by claim-
ing that he had been in jail, unable to obtain bail in time to
arrive for work as scheduled . Though Haws flatly and
unequivocally denied ever being arrested in December for
being drunk , or ever being absent because of drunkenness,
or because of being in jail for being drunk , he vacillated
when asked about reports which he had made to Respon-
dent to excuse his tardinesses in December. At the time, I
felt that he might well have made the reports ultimately
attributed to him by O'Neil, Jimenez , and Lopez . If so, such
a report to O'Neil on New Year 's Eve would be consistent
with his past excuses.
This conclusion is only further supported by the defen-
sive attitude displayed by Haws when cross-examined
about the identity of the doctor whom he had allegedly
147
seen . It appeared that Haws was concerned that Respon-
dent might make an effort to contact that doctor and his
concern is yet a further indication that he was not actually
ill on New Year 's Eve. Indeed , while the General Counsel
makes much of the fact that Lopez did not appear willing to
accept a doctor 's excuse at the time of the discharge , neither
Dr. Huey nor an excuse from Dr. Huey was provided at the
hearing to support Haws' defense of illness . In this regard, it
is axiomatic that the determination of a state agency is not
binding on the Board and, even if it were , the record is too
vague concerning the California Department of Employ-
ment determination of the reason for Haws' termination to
support a finding adverse to Respondent.
Finally, it is also clear that at least some of the elements
of past misconduct attributed to Haws were known to
Lopez at the time he had made the decision to terminate
him. Thus , Haws did not deny Lopez' testimony that, on
December 9, Lopez had inquired regarding a particular
tardiness, nor did he deny the evidence that Lopez had
admonished him for failing to "pull his weight ," and for
smoking when he should be working - both matters which
Jimenez testified were of concern to kitchen personnel.
Although Haws did receive a raise in December, which
Respondent did not explain, it has not been shown that the
raise was conferred after these two conversations with
Lopez . Significant also is Haws ' admission that when he
had received the raise he had been told that he was doing a
better job , thus indicating some prior dissatisfaction with
his work and some effort to provide an incentive for
improvement , and "that there was a few things I could pick
up on." In these circumstances, and in view of the other
December events culminating in the New Year's Eve
absence, the raise is not entitled to great weight.
Consequently, I find that Haws was terminated for
misconduct by failing to report for work on New Year's Eve
as scheduled, for not speaking with his immediate supervi-
sor, and for reporting that his absence was occasioned by a
hangover. I find , in addition, that Respondent did not
possess knowledge of Haws' support for , and activities on
behalf of, the Union at the time of his termination and that
the evidence does not support a conclusion that Respon-
dent harbored hostility against union supporters sufficient
to establish an unlawful motivation.
A similar result obtains with regard to Hull. While a
discriminatee need not appear to prevail on an allegation of
unlawful discharge , the General Counsel does bear the
burden of showing that the discharge was unlawful. Here,
the only evidence is that Hull attended the Imperial Room
meeting on January 4, 1975, that he was the principal
opponent of O'Neil's continued presence, and that he had
been discharged 2 days later , partly as a result of a dispute
with O'Neil. Even taking into consideration Hull's testimo-
ny in the representation proceeding , the most that can be
shown is that Hull and O'Neil argued concerning the
former's continued discussion of the Union while on
worktime in Respondent's bar and in the presence of
customers. Such activity might well not be protected. See
N.L.R.B. v. May Department Stores Company , 154 F.2d 533,
537 (C.A. 8, 1946). Of course , I did deny the Union's
motion to , in effect , continue the hearing to see if Hull
would return from Europe . Yet, the General Counsel did
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not loin in the motion and other avenues could have been
explored to obtain the information needed to appraise
whether a prima facie case existed - the other bartender,
who had apparently been present during the dispute
between O'Neil and Hull, could have been called as a
witness and, presumably, O'Neil and Lopez could have
been called and interrogated concerning the matter. This
was not done and, in the circumstances, I find that a
preponderance of the evidence does not support the
allegation that Hull had been discharged for unlawful
considerations.
Therefore, I find that it has not been established that
Respondent discharged Robert W. Haws and Michael Hull
II because of their membership in or activities on behalf of
the Union, or because they engaged in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection.
D. Issues 4 and 5
Having found that Respondent violated Section 8(a)(1) of
the Act by the surveillance conducted by Lopez and Yakel
at the January 18, 1975, meeting, I find that there is
evidence of conduct of sufficient seriousness to disturb the
laboratory conditions under which the February 26, 1975,
election was conducted. Dal-Tex Optical Company, Inc., 137
NLRB 1782, 1786-87 (1962). That Lopez and Yakel may
not have been maliciously motivated in going to the
Imperial Room and may merely have been attempting to
satisfy their own curiosity hardly absolves them of their
conduct in light of the effect which it must have had on the
employees who had been present at that meeting and on
those who had not been present, but later learned what had
taken place. Particularly significant is the fact that they not
only remained after being admonished by Holler, but then
procured another vehicle and parked elsewhere in an effort
to conceal their continued surveillance.
However, I do not feel that this violation of Section
8(a)(1) is of sufficient magnitude to have destroyed the
Union's support and to preclude the possibility of conduct-
ing a fair rerun election. An election is the superior method
for "ascertaining whether a union has majority support."
Linden Lumber Division, Summer & Co. v. N.L.R.B., 419
U.S. 301, 304 (1974). The unfair labor practice committed
on January 18, 1975, was not repeated nor was any other
unfair labor practice committed during the period prior to
the election. Thus, the incident of surveillance appears to
have been only a "one time" proposition. See WCAR, Inc.,
203 NLRB 1235 (1973). It does not appear to be likely to be
repeated and I find that the normal Board remedy is
sufficient to correct the effects of that unfair labor practice
without depriving the employees of their right to make their
decision concerning representation through the election
procedure.
Therefore, I find that Respondent's conduct was of
sufficient magnitude to warrant setting aside the election
conducted in Case 20-RC-12524, but I do not find that the
single violation of Section 8(a)(1) of the Act committed by
Respondent is so serious and substantial in character as to
warrant entry of a remedial order requiring Respondent to
recognize and bargain with the Union.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of Respondent set forth above, occurring in
connection with the Respondent's operations described in
section II, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead, and have led, to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By engaging in surveillance of employees' activities
on behalf of the Union, Respondent has violated Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act.
5. The objections filed by Petitioner are sustained only
to the extent that they are the same as the unfair labor
practice found above and, therefore, warrant setting aside
the election in Case 20-RC-12524.
6. Respondent did not violate the Act in any other
manner and the objections filed by Petitioner in Case 20-
RC-12524 are overruled to the extent that they allege
conduct other than that found objectionable above to
constitute grounds for setting aside the election conducted
in Case 20-RC-12524.
7. A bargaining order is not warranted as a remedy for
the unfair labor practices committed by Respondent.
REMEDY
Having found that Respondent engaged in certain unfair
labor practices , I shall recommend that it be ordered to
cease and desist therefrom and that it take certain affirma-
tive action set forth below to effectuate the policies of the
Act.
[Recommended Order omitted from publication.]