Pedro's Restaurant

National Labor Relations Board - Board Decisions

Nov 23, 1979

246 N.L.R.B. 567 (N.L.R.B. 1979)

PEDRO'S RESTAURANT
Pedro's Inc., d/b/a Pedro's Restaurant and Hotel and
Restaurant Employees and Bartenders Union, Local
19, Hotel and Restaurant Employees and Bartend-
ers International Union, AFL-CIO. Cases 32-CA-
1014 and 32 RC 276
November 23, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENI.LO()
AND TRUESI)ALE
On June 19, 1979, Administrative Law Judge Earl-
dean V.S. Robbins issued the attached Decision in
this proceeding. Thereafter, Respondent, the Charg-
ing Party, and the General Counsel filed exceptions
and supporting briefs, and Respondent and the Gen-
eral Counsel filed answering briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt her recommended Order, as modified below.3
I Respondent and the General Counsel have 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 credibility 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 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing her findings
2 Respondent contends that in finding various authorization cards valid
the Administrative Law Judge. contrary to the teaching of Levi Strauss &
Co., 172 NLRB 732 (1968). relied solely on the absence of testimony that
employees were told that the cards were "only" for the purpose of obtaining
an election. Alternatively, Respondent contends that there is evidence that
employees were told that the cards were "only" for an election. As the Board
stated in Levi Strauss (172 NLRB at 733. fn. 7):
... a finding of misrepresentation in the soliciting of cards] is [not]
confined to situations where employees are expressly told in haec verba
that the "sole" or "only" purpose of the cards is to obtain an election.
The Board has never suggested such a mechanistic application of the
foregoing principles, as some have contended. The Board looks to sub-
stance rather than to form. It is not the use or nonuse of certain key or
"magic" words that is controlling, but whether or not the totality of
circumstances surrounding the card solicitation is such as to add up to
an assurance to the card signer that his card will be used for no purpose
other than to help get an election. [Emphasis supplied.]
We are satisified that in assessing the validity of the cards the Administra-
tive Law Judge used the above standard, and in affirming her disposition on
the cards we have also viewed the totality of the evidence concerning the
representations made to the employees.
We find it unnecessary to pass on the validity of Donna Huckstop's autho-
rization card since the Union's majority status would not be affected by such
a determination.
In the absence of exceptions thereto Member Truesdale adopts pro forma
the Administrative aw Judge's inclusion of Angel Ramirez in the bargain-
ing unit (See Member Truesdale's dissenting opinion in Tops Club. Inc.. 238
NLRB 928 (1978).) Also, in the absence of exceptions, Member Truesdale
finds it unnecessary to pass on the facial validity of the no-solicitation no-
distribution rule involved in this proceeding
IThe Administrative law Judge recommended that Respondent cease
and desist from "in any related manner" interfering with the employees' Sec
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Pedro's
Inc.., d/b/a Pedro's Restaurant, Los Gatos, Califor-
nia, 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 (f):
"(f) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights
gauranteed them in the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERE) that the election held on
April 21, 1978, be set aside and the petition in Case
32-RC 276 be, and it hereby is, dismissed.
7 nghts Due to the egregious and widespread unfair labor practices in this
case. which show a general disregard for the employees' fundamental statu-
tory rights and which we have found are sufficient to warrant the issuance of
a bargaining order, we find that the broad language "in any other manner"
is necessitated herein. We have modified the recommended Order and notice
accordingly. Cf Hickmott Foods. Inc., 242 NLRB 1357 (1979).
APPENDIX
NOTICE To EMPI.OYEES
POSTED BY ORDER OF THE
NATIONAl. LABOR RE.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act, as amended, and has ordered us
to post this notice and we intend to carry out the
Order of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represent-
ative of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with
these rights. More specifically,
WE WILL NOT refuse to recognize and bargain
with Hotel and Restaurant Employees and Bar-
tenders Union, Local 19, Hotel and Restaurant
Employees and Bartenders International Union,
AFL-CIO, as the exclusive representative of our
employees in the unit set forth below.
246 NLRB No. 92
567
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL N)O F coercively interrogate our em-
ployees regarding their union activities and sym-
pathies and the union activities and sympathies
of fellow employees.
WE WILL NOT promulgate no-solicitation/no-
distribution rules in order to discourage our em-
ployees from engaging in union activities.
WE WILI. NOT solicit from our employees
grievances underlying their desire for union rep-
resentation and remedy such grievances in order
to discourage their interest in and support of Ho-
tel and Restaurant Employees and Bartenders
Union, Local 19, Hotel and Restaurant Employ-
ees and Bartenders International Union, AFL
CIO, or any other union.
WE WIl.L NOT promise, announce, or grant
benefits and improvement in working conditions
to our employees in order to induce them to re-
ject the Union as their collective-bargaining rep-
resentative.
WE WI.L NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed in the Act.
WE WILL, upon request, recognize and bargain
collectively with Hotel and Restaurant Employ-
ees and Bartenders Union, Local 19, Hotel and
Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, as the exclusive repre-
sentative of the employees in the following ap-
propriate unit, and, upon request, embody in a
signed agreement any understanding reached:
All full-time and regular part-time employees
employed at our 316 Santa Cruz Avenue, Los
Gatos, California, location, excluding all office
clerical employees, casual employees, tempo-
rary employees, guards and supervisors as de-
fined in the Act.
PEDRO'S INC., D/B/A PEDRO'S RESTAURANT
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge:
This case was heard before me in San Jose, California, on
various dates in February 1978. The original charge was
filed by Hotel and Restaurant Employees and Bartenders
Union, Local 19, Hotel and Restaurant Employees and
Bartenders International Union, AFL-CIO, herein called
the Union, and served on Respondent, Pedro's Inc., d/b/a
Pedro's Restaurant on June 21, 1978. The complaint which
issued on July 19, 1978, alleges that Respondent violated
Section 8(a)(1) of the Act.
The petition in Case 32-RC-276 was filed by the Union
on February 17, 1978. Pursuant to a Stipulation for Certifi-
cation Upon Consent Election approved on March 22,
1977, an election by secret ballot was conducted on April
21, 1978, which resulted in 36 ballots cast for and 56 cast
against the Union. On April 28, 1978, the Petitioner filed
timely objections to the election, copies of which were duly
served on Respondent.
On June 15. 1978, the Regional Director issued and
served on the parties a Report on Objections, Order and
Notice of Hearing in which he recommended that certain of
the objections be overruled and determined that two of the
objections raised substantial and material issues of fact
which could best be resolved through a hearing. Thereafter
Petitioner filed timely exceptions to the Regional Director's
report. On August 7, 1978, the Board issued a Decision and
Order Directing Hearing in which it adopted the Regional
Director's recommendation that two of the objections could
best be resolved by a hearing but, contrary to the Regional
Director's recommendation, determined that three addi-
tional objections could best be resolved by a hearing. The
Regional Director's recommendation that three other ob-
jections be overruled was also adopted by the Board.
An amended complaint in Case 32 CA 1014 issued on
October 25, 1978, alleging that Respondent violated Section
8(a)(1) of the Act. On that same date the Regional Director
issued an Order consolidating Case 32 RC-276 with Case
32 -CA 1014. On October 25, 1978, an amended charge in
Case 32-CA-1014 was filed by the Union and served on
Respondent. On November 7, 1978, a second amended
complaint issued in Case 32-CA-1014 alleging that Re-
spondent violated Section 8(a)(1), (3), and (5) of the Act.
The principal issues herein are:
1. Whether Respondent sought to discourage the union
membership, support, and activities of its employees by
promising and granting increased promotional opportuni-
ties and health insurance; by soliciting their grievances and
promising to remedy said grievances by promulgating a no-
solicitation rule; by threatening an employee with loss of
employment opportunities; and by threatening to terminate
employees.
2. Whether Respondent coercively interrogated employ-
ees.
3. Whether Respondent told employees that it would re-
fuse to bargain with the Union if they selected the Union as
their collective-bargaining representative.
4. Whether the above conduct is sufficient to warrant
setting aside the April 21, 1978, election.
5. Whether Respondent terminated Patrick Lamb be-
cause of his union or other protected-concerted activities.
6. Whether the above conduct is sufficient to warrant a
finding that Respondent has refused to recognize and bar-
gain with the Union as the collective-bargaining represent-
ative of its employees in violation of Section 8(a)(5) and (1)
of the Act.
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs filed by
the parties, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a California corporation with an office and
principal place of business located in Los Gatos, California,
568
PEDRO'S RESTAURANT
is engaged in the operation of a restaurant and bar. In the
course and conduct of its business operations during the 12-
month period preceding the issuance of the complaint
herein Respondent received gross revenues in excess of
$500,000 and during the same time period purchased and
received goods or services valued in excess of $5,000 which
originated outside the State of California.
Upon the foregoing I find that Respondent is and has
been at all times material herein an employer within the
meaning of Section 2(2), (6), and (7) of the Act.
11. LABOR ORGANIZATION
The complaint alleges, the parties stipulate, and I find
that the Union is, and at all times material herein has been,
a labor organization within the meaning of Section 2(5) of
the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. Organizational Activities
On about January 18, 1978,' employee Patrick Lamb, a
waiter, contacted the Union regarding organizing Respon-
dent's employees. On January 20 Lamb, his brother Alan
Lamb, Charles Thomas, Nyra Krstovich, Nancy Shaw, and
Dennis Sheehan' went to the Union's office and discussed
such organization with union representatives Catherine
Mullens and Davis. At this time all of them signed cards
authorizing the Union as their collective-bargaining repre-
sentative and were given blank authorization cards and
copies of the Union's area collective-bargaining agreement
to distribute to fellow employees.
On January 22, Mullens met with about 20 of Respon-
dent's employees in the home of Thomas and Krstovich.
About 14 employees signed union authorization cards at
this meeting and returned them to Mullens.
On January 23, Pat Lamb and Thomas met with several
employees in a park near Respondent's facility. Several em-
ployees signed authorization cards at this meeting. By Janu-
ary 25, about 30 or 35 other employees had also signed
authorization cards, most of which were solicited by and/or
returned to Patrick Lamb, herein called Lamb, Thomas, or
Krstovich. On January 29, a meeting was held at the home
of Thomas and Krstovich for the Spanish-speaking cooks.
About six cards were signed at this meeting.
On February 2, a union representative hand delivered to
Respondent a letter stating that the Union had obtained
authorization cards from a majority of Respondent's em-
ployees and demanding recognition as the exclusive collec-
tive-bargaining representative of Respondent's employees.
The letter further stated that if Respondent doubted its
claim of majority representation the Union would be will-
ing to have an independent third party check the authoriza-
tion cards against Respondent's personnel records.
By letter dated February 7 Respondent's attorney noti-
fied the Union that it had a genuine and good-faith doubt
that the Union represented an uncoerced majority of Re-
'All dates herein will be in 1978 unless otherwise indicated.
2On January 20 they were all wailtpersons in Respondent's employ. How-
ever, Sheehan left Respondent's employ on January 24.
spondent's employees. On February 17 the Union filed a
petition for an election to be held among all of Respon-
dent's full-time and regular part-time employees.
B. Alleged Threats, Impression of Surveillance, Solicitation
of Grievances, and Promises of Benefits
The undenied testimony of Ronald Weimer, whom I
credit, is that he invited waiter Edward Cone to attend the
union meeting on January 22 at the home of Thomas and
Krstovich and told him that if he had any questions they
would be answered then. Cone said that it was totally ri-
diculous, there was no need for a union, and he was totally
against the idea of a union.' Shortly thereafter, Weimer ob-
served Cone conversing with Assistant Manager Cynthia
Ramirez, herein called Cynthia. Within a few minutes Cyn-
thia approached Weimer and said that she wanted to talk to
him at the end of his shift.
At the end of the shift, Weimer did talk to Cynthia in
Ramirez' office. When he arrived Cynthia pulled out his file
and said, "You have all of these pink slips, which are disci-
plinary slips. And, as a matter of fact, you have the most in
the Restaurant." Then she said, "People have come to me
and told me that you have asked them to these meetings.
What are these meetings." Weimer replied, "I don't know
what you're talking about." Cynthia said, "But people have
come to me and told me that you have asked them to these
meetings."
Weimer continued to deny any knowledge of any meet-
ings. Cynthia again referred to the pink slips stating,
"Granted these are for small minor things, and I would
hate to see you get fired for any little bitty thing." Then she
asked, "Don't you like it here?" Weimer said that he did.
Cynthia said, "Well, do you have any problems? Is there
any gripes that you have?" Weimer replied, "The only gripe
that I have and everybody else has, the main one, is that
you treat us like little bitty kids."
At around this same time Cone telephoned Peter S. Ra-
mirez, Respondent's president and one of Respondent's two
owners. Cone told Ramirez that there were some problems.
The employees wanted a health insurance plan, promotions
from within, and scheduling according to seniority. Cone
further said that he thought Ramirez should have a meeting
with the employees to resolve these problems because the
employees were considering going union. Ramirez thanked
Cone for the information and said that he would hold such
a meeting.'
On January 26, Ramirez did hold a meeting of employ-
ees. He said that he had heard that they had complaints
and gripes that he would like to get out in the open. He
asked what the complaints were. Various employees then
complained that a waiter had recently been hired "off the
streets" and immediately assigned to one of the best shifts.
Ramirez said that Respondent had the right to do this, that
the individual referred to was very experienced. The em-
ployees complained, however, that this was unfair since
some employees had been promised promotions to waiter
positions, and they thought some system should be worked
Cone did not sign a union authorization card nor did he attend any
union organizational meetings.
'This is from the testimony of Cone and Ramirez
569
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out whereby they would learn whether they would get such
positions when they became available. Ramirez said that it
was the general practice to promote from within, and that
they would work out a plan whereby promotional opportu-
nities would be posted ani employees would be given first
preference as to promotions.'
One of the employees inquired as to health insurance.
Ramirez said that Respondent had contacted several insur-
ance companies who would be submitting bids. and that
when the bids were finalized he would tell them more about
the insurance plan. No mention was made of the Union or
union activities. Someone complained that management
was issuing excessive and unfair warning notices, called
pink slips. Lamb said that he felt that certain people, in-
cluding himself, were being selectively pink slipped, that he
felt that Cynthia, who is Ramirez' sister, was specifically
trying to catch him doing something wrong. Ramirez said
that he would try to make sure that the pink slips were
issued on a fair and equitable basis.
Later that day, Ramirez met with Pat Lamb to discuss an
incident which occurred on the previous day when Cynthia
Ramirez gave him a "last and final" written warning for
violating company policy by eating a cupcake intended for
customer consumption and for leaving his work station to
look at the recently posted work schedule. Lamb refused to
sign the pink slip, and during the course of the discussion
Cynthia asked Lamb what his grievances were. Lamb re-
fused to discuss his grievances, and Cynthia decided to ter-
minate him in part admittedly because he refused to discuss
his grievances.
During this January 26 conversation with Lamb, Rami-
rez read to him Cynthia's written account of this incident
which stated, inter alia, that Lamb felt that Cynthia thought
he was a "troublemaker and ringleader." Ramirez reversed
Cynthia's decision to terminate Lamb and suggested that
there was a personality conflict between Lamb and Cynthia
which they should try to resolve. At the end of the discus-
sion, Ramirez asked Lamb what his personal gripe was,
what bothered him more than anything else. Lamb replied
lack ofjob security, that he could be discharged at any time
on some whim of Cynthia's. Ramirez replied that he could
guarantee Lamb his job.
C. Changes in Working Conditions
I. The posting of promotional opportunities
During the week following the January 26 meeting, Re-
spondent began posting on the bulletin board all promo-
tional opportunities. This continued for the next few
months until shortly after the election. Respondent had
never posted promotional opportunities prior to January
26. According to Ramirez, Respondent ceased this practice
The account of this meeting is from a composite of the testimonies of
several witnesses, including Ramirez, which I find more accurately reflect
what occurred. I note that one or two employee witnesses stated that Rami-
rez said that he would institute a new plan of promotion from within. Upon
consideration of all of the testimony as to this meeting, the general agree-
ment that promotion from within had been the usual practice, and the post-
ing of promotional opportunities which commenced within the week follow-
ing the meeting. I find that any reference made by Ramirez to a new plan
referred to instituting a posting system and not to instituting a new policy of'
promotion from within.
after a few months because he had made a promise to the
employees that they would be "in line" and they would be
given first consideration. Accordingly. Ramirez contends,
the employee next in line for promotion knew that he or she
would be promoted when the next opportunity arose, and
the posting served no real purpose.
2. The no-solicitation rule
Within 2 weeks after January 26 Respondent, for the first
time, posted a notice on the bulletin board stating:
Based upon long-established rules, your attention is
called to the following:
"Solicitation of any type by employees during working
time is prohibited.
"Distribution of literature of any type or description
by employees during working time is prohibited.
"Distribution of literature of any type or description in
working areas is prohibited.
"Violation of any of the above rules will result in im-
mediate disciplinary action, including discharge."
There is no contention that the rule is not valid on its face.
Respondent contends that this notice merely put into
writing a policy that had been in existence for a long time
prior thereto. Ramirez testified that as a part of orientation
all new employees are told that there will be no selling of
flowers. soliciting products. wearing buttons or excessive
jewelry, and no solicitation of any type. However, Lamb
and Krstovich testified without contradiction that they
were never told about the existence of a no-solicitation rule
prior to the rule being posted on the bulletin board. 6 Fur-
ther, the undenied testimonies of Lamb, Krstovich, and
Thomas were that it was common practice for employees to
distribute information or catalogs regarding items for sale,
party invitations, announcements of bazaars. etc., or to
leave such at the table where employees take their breaks.
Birthday and other greeting cards would be circulated for
signatures. Also, about a year prior to the hearing herein,
Cynthia admittedly solicited signatures on a greeting card
for employee Juan Meza and collected money from em-
ployees for a gift for Meza. She also admits that she was
aware that tupperware was being sold and/or delivered on
Respondent's premises, and that she has seen invitations to
pottery parties and clothing parties posted on the bulletin
board. Assistant Manager Kathleen Rustrum. an admitted
supervisor, testified that she has seen tupperware catalogs
on the table in the employees' break area.
3. The institution of a health insurance plan
In mid-March, Respondent held a meeting of all employ-
ees except the cooks, Ramirez said that he had a surprise
for them that they had been insured for a week or so and
did not know it. He then introduced Respondent's insur-
ance broker and a representative from the insurance com-
pany who explained the new health insurance coverage and
gave them forms to fill out. The Union was not mentioned
during the meeting.
L.amb was hired in September 1976. Krstovich was hired in August 1975.
570
Pi l)RO'S RSI'AURANI'
The General Counsel alleges that this insurance plan was
instituted and announced in order to induce employees to
refrain from supporting the Union or to withdraw such sup-
port. Respondent contends that it had been planning for
several years to institute a health insurance plan as soon as
it was financially feasible. It did become so feasible in 1977.
and Respondent began taking steps to implement its deci-
sions.
The testimony of Krstovich is that in about October
1975' Ramirez told employees that once Respondent's
building expansion program was completed Respondent
would be a "big business" and would provide health insur-
ance for the employees. The new restaurant was completed
in around May 1976. Thereafter, in several meetings, em-
ployees inquired as to when health insurance coverage
would commence. Ramirez said he was "looking into it."
On one occasion, according to Krstovich's undenied testi-
mony which I credit, Ramirez said that restaurants usually
did not have insurance plans because of the high turnover
rate during the initial 3 months of employment. One of the
employees suggested a plan which covered only those em-
ployees who had worked 3 or 6 months. Ramirez said that
perhaps such a plan was possible.
On April 23. 1977. Ramirez was again queried as to
health insurance coverage. According to the minutes of that
meeting someone asked, "When are we going to receive
group insurance for all us employees?" Remirez replied,
"the Restaurant operation is now in a position to make
inquiries collecting formal bids from several insurance com-
panies. Within 90 days, we will have our first good look at
insurance proposals. By the end of November, our manage-
ment team should have selected the best plan in terms of
what is best for our crew as well as what is needed in the
way of basic medical/dental services." No date was men-
tioned as to when such a plan would go into effect. Accord-
ing to Schimmel. after this meeting Ramirez instructed him
to secure bids from various insurance companies.
No plan was selected by November 1977.
Actually, it is apparent that no concerted attempt was
made to secure bids prior to November 1977. It is also ap-
parent that such attempts were being made in late January
and February 1978. The dispute is what was done in the
interim, specifically, what was Respondent's commitment
prior to the advent of union activities.
Manager Walter Schimmel testified that between April
23 and November 18. 1977. he contacted several insurance
companies. several of whom indicated a lack of interest in
underwriting such plan and others who, while manifesting
interest, did not follow through. The record contains no
documentary evidence in support of this contention except
for a letter dated November 18. 1977. from a State Farm
insurance agent. which seems to indicate that during the
preceding week when Ramirez secured some personal in-
surance coverage through this agent the agent was invited
to submit a bid for health insurance coverage for Respon-
dent's employees. Also, Schimmel cannot recall the dates
that he contacted these companies.
In mid-December employee I'racey Hobson asked
Schimmel if she could indicate to her father, Harold Hob-
son, an insurance broker. Respondent's interest in securing
' Ramirez contends that he first mentioned insurance in 1976
a health insurance plan. Schimmel said that she could. and
shortly thereafter Harold Hobson. herein called Hobson.
telephoned him. Schimmel and Hobson first met on about
I)ecember 17. 1977. They agreed that lobson would con-
tact Prudential Life Insurance ompan, and New York
Life Insurance Company. In January. Schimmel and at
times Ramirez, met several times with Hobson and/or
Schlarb. group insurance area vice president for Prudential.
and Schimmel had a number of telephone conversations
with them.
According to Schimmel. a proposal was solicited from
New York Life in January, and he had three meetings in
January with a representative from that company. Schim-
mel also testified that he solicited a proposal from MBL
Group in December, from Professional Group Administra-
tors in January, and that he solicited a proposal trom
Crown l.ife Insurance Company in January through Jack
Montgomery. CLU.
The Prudential proposal is dated February . The New
York Life proposal is dated February with no specific date
indicated. The State Farm proposal is dated February 21,
1978. The MBL and Crown Life proposals state that the
proposal is valid for a certain specified period from Febru-
ary 28 and March 15, respectively. which would seem to
indicate that these are the dates the proposals were sub-
mitted. The PGA proposal is undated, but the proposal
contains a statement that Respondent had received a quote
from Prudential of certain specific rates and proceeds to set
forth the savings that could he realized with the PGA costs
as opposed to the Prudential rates. It also compares PGA
costs with the Crown premium. This would seem to indicate
that the proposal was prepared after Prudential submitted
its proposal, and I so find. However, I conclude that this
same inference cannot be drawn from the reference to
Crown in the PGA proposal since MBL, PGA, and Crown
are all represented by Jack Montgomery, and thus he may
have had access to premium information from Crown be-
fore the formal bid was submitted.
I do not credit Schimmel's testimony as to the dates the
MBL bid was solicited. I note that the proposals from
MBL. Crown Life, and PGA all indicate that the compa-
nies are represented by Jack L. Montgomer. I conclude
that it is more likely and I so find that Schimmel dealt with
Montgomery in the same was that he dealt with tIobson.
He requested proposals and Montgomery secured proposals
from the three companies.
Also I found Schimmel's testimony to be conflicting in
some regards and confusing in other regards, and that he
had a distinct tendency to slant his testimony to indicate
that all critical decisions regarding health insurance cover-
age were made prior to Respondent having knowledge of
the union activities. Thus he testified that a decision was
made to accept Prudential's proposal in January. Yet the
proposal was not submitted until February I. He also testi-
fied that he was unaware of any union activity until Febru-
ary 20 when Respondent received a copy of the petition
filed in Case 32 RC 276. In response to other questions.
however, he admitted that he was aware of the February 2
demand letter, and that in January he knew employees had
been in contact with Local 19. Ie admits that he compared
certain health insurance plans with the Union's health plan
and states that this comparison was made in the first week
571
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of January for the purpose of establishing without doubt
competitive benefits available in the industry.
Hobson testified that the February 1 proposal was the
first formal proposal submitted by Prudential. Several revi-
sions were made. The final revision was made probably in
about the third week of February. Shortly thereafter, in the
last week in February, Ramirez indicated that he was going
to accept the Prudential proposal.
Hobson also testified that in February, after Ramirez in-
dicated that he intended to accept the Prudential plan,
Schimmel asked him to compare the benefits under the Pru-
dential plan with those under the union plan. Schimmel had
given him a copy of the Union's plan with Phoenix Mutual
sometime in January.
Ramirez' testimony regarding the date certain critical de-
cisions as to insurance coverage were made was also con-
flicting and revealed a tendency to slant testimony so that it
would appear that the decisions were made prior to the
advent of the Union. Thus Ramirez initially testified that
the insurance proposal from Prudential was accepted in the
first 2 weeks of January, and that he saw the written pro-
posal the first week in January. When counsel pointed out
that the proposals were dated in February, he admitted that
he did not see the Prudential proposal until February. He
also admitted that he did not rule out the State Farm pro-
posal until after it was submitted on February 21, and that
the reason the Prudential plan was implemented on March
6 was because by that time he had received bids from other
companies and considered the Prudential plan the most ac-
ceptable.
Hobson testified that the effective date of coverage was
March 6, the date the formal application was signed by
Ramirez and the initial premium paid. Hobson further tes-
tified that during the past 10 years he has had extensive
experience in the formulation and implementation of group
health plans, including several for restaurants the size of
Pedro's. According to him, it has been his experience that
with such restaurants it takes a minimum of 2 months from
a client's first contact with him to the execution of the for-
mal application and initial premium payment.
D. The Alleged Interrogations and Other 8(a)(1) Conduct
According to the undenied testimony of Thomas, which I
credit, in early February Cynthia asked him what he
thought of the Union. Thomas related his past experience
with unions and said that there were some good points and
there were some bad points. She asked what his overall
impression was as to having a union represent Respondent's
employees. Thomas replied that overall he felt that a union
would be very good and that it would benefit employees
more than it would hurt them. Cynthia then discussed how
she felt a union would hurt Pedro's. Thomas did not testify
in any further detail as to what Cynthia said. He admits,
however, that she did not threaten to discharge him or take
any other reprisal against him.
On April 5, Ramirez sent letters to all unit employees
which contained permissible election propaganda and
urged employees to vote no. Lamb testified that on the day
following his receipt of that letter he was in the kitchen
when Ramirez asked him if he had received the letter.
Lamb said that he had. Ramirez asked, "What did you
think of it?" Lamb said that it was a nice letter and walked
into the dining room. Ramirez came into the dining room
and asked, "What did you think of its contents?" Lamb
continued with his duties. Ramirez again asked, "What did
you think of its contents?" Lamb said that it represents
your point of view, not ours.
Ramirez testified in essential agreement except that in his
version he only asked Lamb once what he thought of the
contents of the letter. Ramirez also testified that on that
same evening he asked about a dozen employees if they
received the letter. According to him, he inquired because
he wanted to be sure they received the letter. If they had
not then he would have sent them another letter.
On or about April 19 Respondent held a meeting which
all employees were required to attend. Ramirez began the
meeting by reading a statement. Lamb testified that Rami-
rez read the letters that previously had been sent to employ-
ees Ramirez testified that he read a speech prepared by
Respondent's attorney. Since the letters and the prepared
speech cover essentially the same subject matter, it is under-
standable that Lamb assumed he was reading the letters.
However, there is nothing in the record to indicate that
Lamb actually saw the papers from which Ramirez was
reading or that as Ramirez was reading Lamb was reading
along from the letters sent to him. Accordingly, I find that
Ramirez was reading from the prepared speech.
The General Counsel contends that the following por-
tions of the prepared speech are violative of the Act:
In your own self-interest remember in connection
with voting, that we have given you a flexible work
schedule at your request. There is no such thing under
the union contract. Under the contract that the union
has with those restaurants in Santa Clara County
which are unionized, it is required that the schedule be
fixed and maintained.
Again in your own self-interest, remember what we
pointed out with respect to restrictions placed upon
students under the union contract. Under the union's
requirements, no more than 2 students are allowed to
work on any shift at the same time and no more than 4
hours a day. In addition, students need the union's
permission to work. You need a permit from the union
which is good for only one month. Most of you are
students. By voting for the union, you would put your
jobs in jeopardy. Unions like to have the same contract
for the same industry or business in the same area.
Why does the union want such a restriction on stu-
dents? Because they prefer full time workers who pay
more dues and it also affords the union bosses an op-
portunity to take care of the old timers who are their
friends. Marolda may say, as he did, to this--"bull-
shit," but it is a fact. The restriction is in the union's
contract for the restaurants in Santa Clara County.
Marolda cannot escape that fact!
Now let me say something about any promises the
union representative may have made to you. Union
representatives are very glib about making promises,
most of which they never deliver. They do so to get
your vote, your initiation fees and your dues. To them,
you represent a bunch of people who put money in the
pockets of the union bosses.
572
PEDRO'S RSTAUIRAN I
You know it takes two to make an agreement. The
union and us, the employer. Merely. because a union
demands something, it doesn't mean we have to give it.
We are only required, if there is a union which has
been elected as the bargaining agent, to bargain. Now,
what happens if an employer does not agree to the
union's demand. The only alternative the union has is
to pull employees out on strike. If there is a strike in
such a situation, an employer has the right to continue
to operate its business and the right in that connection
to hire permanent replacements for the strikers.
Can you picture yourself on a picket line? When
there is a strike, under the law. strikers are off the pay-
roll no wages and no tips. Neither do strikers get un-
employment benefits. Thus, you have no income com-
ing in while your expenses go on. Neither do you ever
make up the lost earnings. The union may tell you they
will pay strike benefits. What? Ten or fifteen dollars a
week! Can you live on that?
Remember, it is the employer and not the union that
creates jobs. All the union can do is call strikes and
destroy jobs.
During the course of the meeting employees asked ques-
tions and made comments. Lamb credibly testified that
when Ramirez said only two students would be able to
work at the same time if the Union was their majority rep-
resentative Lamb challenged the statement. Lamb said that
it was not a true statement, that the actual fact was that
only two students could work at the same time under re-
duced union dues, and that the rest of the employees who
were students would just have to pay full union dues and
become regular members of the Union.
Employee Deda Pitman said that certain union activists
were afraid of their position and inquired if there would be
any retaliation against the organizers. Ramirez said that it
would be illegal for him to retaliate against organizers. Pit-
man asked if anyone would be discharged. Ramirez said no,
that it would be against the law, that every employee had a
legal right to inquire about the Union. Someone then asked
about shift cutbacks. Schimmel shrugged his shoulders, and
then Ramirez said that no one would be cut back.
Also, Thomas questioned Ramirez' statement that with
union representation the work schedule would not be flexi-
ble. Thomas said that each collective-bargaining agreement
was individually negotiated, and schedules did not neces-
sarily have to be fixed.
Schimmel referred to the union contract and said that
employees could be charged for breakage under the union
contract. Thomas said that they could only be charged for
breakage if it was proved to be willful negligence. Someone
asked a question regarding student status, and Schimmel
read the following provision from the union contract:
Sec. 10. srTUDNTrS: (a) Students will be permitted to
work upon receipt of working permit from the Union
each month. The permit will be good for the current
month only. One student will be permitted in each
house employing ten (10) or less employees. Not more
than two (2) students will be permitted to work on any
shift at the same time. Students shall not be permitted
to work more than four (4) hours per day. If at any
time a student should work more than the four hours
maximum then the student must become a full-fledged
Union member and be compensated as such.
It is unclear from the record whether he also read subpara-
graph (b) of that section:
(b) Payment of student fees for dues to the Union
shall not be required prior to the 30th day of employ-
ment.
At some point during the meeting. Thomas said that he
had to go to school and started walking out of the meeting.
Ramirez asked Schimmel if Thomas had permission to
leave. Schimmel said that he did not know, he would check
with Cynthia. Ramirez then said. "Walking out of here is
just like walking off the floor."'
Lamb testified that on the night before the election Ra-
mirez asked several employees individually "are you with
us, we need your no vote." On at least one occasion, ac-
cording to I.amb., Ramirez asked, "are you with us, we need
your no vote, 115 no votes" as if it were a cheer. Ramirez
denies making such statements. According to him, on the
day of the election, he merely admonished various employ-
ees to be sure to vote. Rustrum also testified that she heard
Ramirez tell several employees, including herself, to be sure
to vote. She did not testify as to what occurred the day
bet;re. I have previously found Lamb to be an honest, reli-
able witness. I credit him in this regard.
E. Conclusions as to the Alleged 8(a)(l) Conduct
1. The no-solicitation rule
It is apparent from the evidence and I find that prior to
the posting of the rule on the bulletin board employees en-
gaged in various types of solicitation on Respondent's
premises with Respondent's knowledge. I further find in
view of the testimonies of Lamb and Krstovich, whom I
credit, that Respondent did not communicate to employees
the existence of a no-solicitation rule. In reaching this con-
clusion I have fully considered Ramirez' testimony that this
information is given to employees during orientation. How-
ever, I note that there was no testimony to this effect by
anyone actually engagd in the orientation of new employ-
ees.
In view of the above and of the timing shortly after Re-
spondent learned of its employees' union activities and at or
about the same time that Respondent was engaged in var-
ious other responses to such activities, I find that Respon-
dent promulgated a no-solicitation, no-distribution rule as
part of its response to the union organizational activities of
its employees. Accordingly, I find that such conduct was
violative of Section 8(a)( ) of the Act. See Montgomerv
Ward & Co.. Incorporated. 227 NLRB 1170 (1977).
2. Alleged threats, impression of surveillance, solicitation
of grievance, and promises of benefits made prior to the
filing of the petition
There is no essenial disagreement as to what occurred at his meeting.
The account herein of what was said is a composite of the testimonies of
Lamb, Thomas. Ramirez, and Schimmel. which I find more accurately re-
flect what was said.
573
DE