Perko's Inc.

National Labor Relations Board - Board Decisions

Jun 13, 1978

236 N.L.R.B. 884 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Perko's Inc. and Culinary, Cooks, Bartenders and Ho-
tel, Motel Service Employees Union, Local 62, Ho-
tel and Restaurant Employees and Bartenders Inter-
national Union, AFL-CIO. Case 32-CA-115
(formerly 20-CA- 12047)
June 13, 1978
DECISION AND ORDER
BY MEMBERS JFNKINS. MURPHY,
AND TRtUESDAILE
On December 16, 1977, Administrative Law Judge
James T. Barker issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief and the General Counsel filed
an answering brief.
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
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
Respondent has excepted to certain credibility findings made by the
Administrative Laws Judge. It is the Board's established policy not to over-
rule an Administrative law Judge's resolutions with respect to credibilits
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Produers. Inc.. 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have careful)
examined the record and find no basis for reversing his findings.
The Administrative L.aw Judge found that H. T. Brooks created an
impression in employee Janeway that her union activities were under sur-
veillance when. in the course of a conversation with then Supervisor Padilla.
he commented that the older waitresses were probably responsible for the
union activit. However, there is no evidence that this remark was based on
actual surveillance or, indeed, on anything other than mere speculation and
we find that employees would not reasonably assume from this comment
that their union activity was under surveillance. Accordingly, we shall not
adopt this finding of the Administrative Law Judge. noting that the remedy
ordered herein is not thereby affected.
We adopt. however, the Administrative Law Judge's finding that Brooks'
instruction to Padilla, in the same conversation, to reduce the hours of
Janeway and Rena Smoot, and which also was overheard by Janeway. con-
stituted a threat in violation of Sec. 8(a)( I ) of the Act. In so doing, however.
we do not rely on the Administrative Law Judge's conclusion that Brooks'
comments in this regard were "calculated" to have an impact on Janewav's
exercise of her Sec, 7 rights, because he did not know that she was in a
position to overhear what he was saying to Padilla. Nevertheless, intent is
not material to a finding of coercion within the meaning of Sec. 8(a)(1) of
the Act, and thus, without regard to an) "calculated" endeavor on the part
of Brooks. and notwithstanding his unawareness of her nearby presence, these
comments had a tendency to interfere, restrain. and coerce Janeway in exercis-
ing her right to seek collective representation for herself and other employees.
Member Jenkins would affirm the Administrative Law Judge's finding of
a violation in these circumstances.
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Perko's, Inc., Porterville,
California, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, except that the attached notice
shall be substituted for that of the Administrative
Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT terminate the employment of
Ruby Louise Janeway, Ernest Padilla, or Rena
Smoot, or any other employee, because he or she
engages in union or other protected concerted
activities.
WE WILL NOT engage in any of the following
conduct, which interferes with the rights guaran-
teed employees under the National Labor Rela-
tions Act, as amended, and which violates Sec-
tion 8(a)(l) of that Act:
Interrogating our employees concerning
their union or protected concerted activities.
Polling our employees concerning their in-
volvement in union or protected concerted ac-
tivities.
Threatening our employees with loss of em-
ployment or with closure of our Porterville
restaurant facility because they engage in, or
continue to engage in, union or other protect-
ed concerted activities.
By our unlawful conduct, creating in the
minds of employees the impression that their
union or protected concerted activities are un-
der surveillance by supervision or manage-
ment.
Reducing the hours of employment of any
of our employees because of their involve-
ment in union or protected concerted activi-
ties.
WE WILL NOT discourage membership in Culi-
nary, Cooks, Bartenders and Hotel, Motel, Ser-
vice Employees Union, Local 62, Hotel and
Restaurant Employees and Bartenders Interna-
tional Union, AFL-CIO, or any other labor or-
ganization of our employees, by terminating our
employees because they engage in union or
other protected concerted activities, or in any
236 NLRB No. 107
884
FIN)INr(,;s 0: FA. I
I THt R BSIN ISS OI RI SPFONIF) N T
At all times material herein. Perko's. Inc.. hereinafter
called Respondent, operated a coffeeshop and restaurant
in Porterville. California). and has been a corporation duly
organized under the laws of the State of California. and has
maintained corporate offices in Fresno, California.
During the 12-month period from November 1, 1975,
through October 30. 1976. Respondent received gross reve-
nues exceeding $500,000 in the course and conduct of its
business operations. and during the same period of time
Respondent purchased and received goods. materials, and
supplies valued in excess of $2,000 from sources outside the
State of California.
Respondent concedes, and I find, that at all material
times it has been an employer engaged in commerce within
the meaning of Section 2(2). (6). and (7) of the Act.
iI THE L.BOR OR(ANIlZrlON INSVOi.V !)
The evidence establishes, and I find, that at all material
times the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
II 11HE AI.L.F(;IA) I NFAIR L.ABOR PRACTI(ES
A. The Issues
other manner discriminate against any of our
employees with respect to their hire or tenure of
employment, or any term or condition of em-
ployment, except as permitted by the proviso to
Section 8(a)(3) of the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce any of our employees in
the exercise of the right to engage in self-organi-
zation, to bargain collectively through represen-
tatives of their own choosing, or to act together
for collective bargaining or mutual aid or pro-
tection, or to refrain from any or all such activi-
ties.
WE WILL NOT reduce the hours of work of
Ruby Louise Janeway and/or Rena Smoot be-
cause they engaged in union or other protected
concerted activities.
WE WILL offer Ruby Louise Janeway, Ernest
Padilla, and Rena Smoot immediate and full re-
instatement to their former positions of employ-
ment, or, if those positions are no longer avail-
able, to substantially equivalent positions of
employment, without prejudice to their seniority
or other rights and privileges, and WE WILL make
them whole for any loss of pay which they may
have suffered by reason of our unlawful discrim-
ination against them, plus interest.
PERKO's, INC.
DECISION
STATEMENT OF THE CASE
JAMES T. BARKER. Administrative Law Judge: This case
was heard before me at Fresno, California, on August 22.
23, 24, and 25, 1977, pursuant to complaint and notice of
hearing issued on May 20, 1977, by the Regional Director
of the National Labor Relations Board for Region 20 and
an amended complaint and notice of hearing issued by the
Regional Director on August 5, 1977. The complaint and
the amended complaint are based on charges filed on Oc-
tober 18, 1976, by Culinary, Cooks, Bartenders and Hotel,
Motel, Service Employees Union, Local 62, Hotel and Res-
taurant Employees and Bartenders International Union,
AFL-CIO, hereinafter called the Union, and alleges viola-
tions of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act, as amended, hereinafter called the Act.I The par-
ties were accorded full opportunity to call witnesses.
present relevant evidence, and to engage in oral argument.
The parties waived oral argument and timely filed briefs
with me.
Based upon my observation of the witnesses, the entire
record 2 in this proceeding, and the briefs of the parties. I
make the following:
Unless otherwise specified, all dates herein refer to calendar 1976.
2 The unopposed motion of counsel for the General Counsel to correct
the transcript of this proceeding in certain respects is hereby granted. as el
forth in the document hereby received in evidence as A L J Exh I
The principal issues in this proceeding are: (I) whether
Respondent interfered with, restrained, and coerced em-
ployees in the exercise of their Section 7 rights by interro-
gating. threatening, and polling Porterville employees con-
cerning their membership in and activities on behalf of the
Union: by creating the impression of surveillance of em-
ployee union activities: and by promising employees im-
proved benefits in order to induce them to abandon their
membership in and activities on behalf of the Union: (2)
whether on or about April 22. Respondent unlawfully re-
duced the working hours of Ruby Louise Janeway and
Rena Smoot: (3) whether Respondent unlawfulls terminat-
ed Janeway and Ernest Padilla: (4) whether on or about
May 25. Respondent unlawfully accomplished a further re-
duction in the working hours of Smoot: and (5) whether
Smoot was constructively terminated.
Respondent denies the commission of any unfair labor
practices and specifically contends that the reduction in
the hours of Smoot and Janeway was made for legitimate
business purposes: that Padilla's termination resulted from
his voluntary resignation: that the termination of Janewas
was for cause unrelated to her activities on behalf of the
The amended clrmplainr herein nalned Perklo', In, d h a Perko',
Koffee Kup? Ilapps Stea.k. In<: 'Perko I nterpris,,c In.. is Rcprndcnlr
and ,is single enmplioers Uit Perk",, Inc t)UlrlnT the ctl1urse oi the hcierine
before me. the Cmrnplliinll arid inlrlnded cl rllplallllr ucrc rtoelhel .nellnded
as .t' delcie tl.pps Slc.k. Inc r t erk I rlerI rlr Inr . ri n.a ed Re-
,spornenrts nd [t. delete th ine lccple xer .ll/cCI nrs
PERKO'S INC 885
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union: and that Smoot's termination was voluntary and
not caused by conduct of Respondent.
B. Pertinent Facts
1. Background facts
a. Prefatory events
At pertinent times H. T. Brooks has been president of
Respondent. His son, R. T. Brooks, herein called Randy
Brooks, has served as vice president, and Thomas Nast has
been secretary and treasurer of Respondent. Respondent is
owned jointly by H. T. Brooks and Thomas Nast, who
hold equal number of shares in the corporation. Since
April, in addition to serving as a corporate officer and a
member of the board of directors of Respondent, Randy
Brooks has been a manager and supervisor with direct re-
sponsibility for making personnel assignments to employ-
ees of the Porterville store. In his capacity as supervisor,
Randy Brooks assigned duties to employees at Porterville
and arranged their work schedules.
At pertinent times the employee complement at Por-
terville was approximately 22 in number. Ruby Louise
Janeway and Rena Smoot entered Respondent's employ as
full-time waitresses at Porterville in November 1975. Jane-
way was 35 years old at the time of the hearing, and Smoot
was 30 years old. In early 1976 Janeway was promoted to
the position of head waitress, a nonsupervisory position.
Ernest Padilla was initially employed in November 1975 at
a related facility in Fresno. He trained as a lead cook be-
fore transferring to Porterville in January 1976 where he
served as lead cook until the first week in April. In early
April he transferred temporarily to Fresno but returned to
Porterville on Good Friday and was designated acting as-
sistant manager at Porterville on April 18, Easter Sunday,
to assist the new manager, Ivars Lusis. Padilla was told by
Randy Brooks that he had been designated in an effort to
help build morale and to improve the quality of supervi-
sion. He told Padilla to maintain the same crew and work
with them. In the preceding 5 months, the Porterville res-
taurant had had two separate managers, and the predeces-
sor to Lusis, Al Bouma, had been terminated just prior to
April 18. On or about May 7, Padilla resigned his position
as acting assistant manager and resumed his duties as lead
cook in which capacity he had served prior to his designa-
tion by Randy Brooks.
In March, Janeway contacted Ralph Flores, secretary-
treasurer of the Union, indicating an interest on the part of
Respondent's employees at Porterville in securing union
representation. Flores dispatched a number of union au-
thorization cards to Janeway, and in due course, on April
5, a meeting was held at Janeway's home. Flores attended
the meeting, as did Janeway, Rena Smoot, Ernest Padilla,
and approximately eight other employees. Matters relating
to organizational efforts were discussed and some authori-
zation cards were executed. Janeway, Smoot, and Padilla
executed authorization cards on April 5, and in the days
that followed they each distributed authorization cards in
blank to other employees and solicited signatures. Janeway
approached six employees, Smoot, three, and Padilla, two.
Earlier in March, Smoot spoke with Al Bouma, who was
then serving as manager of the Porterville facility, and
complained concerning the high cost of health care bene-
fits to employees. She characterized the cost as a "rip off"
and observed that the employees would "have to go" union
to get the necessary paid benefits. Bouma counseled Smoot
to wait a couple of weeks. Then, in March or early April,
Bouma told Randy Brooks that there was "union trouble"
at Porterville. At approximately this point in time, during
the first week of April, Padilla conveyed the same message
to Nast.
On Easter Sunday, which coincided with Bouma's last
day of work in the employ of Respondent, Smoot stated in
a teasing manner that Bouma should "stick around" be-
cause the employees were "going Union" and would get
more money and better benefits. Thereafter, on April 19, a
second organizational meeting was held at Janeway's home
and seven employees attended. During the meeting, Jane-
way collected signed authorization cards and gave them to
Flores. Then in April, Rosie Cantrell, a waitress at Por-
terville, was approached by Randy Brooks who asked
Cantrell whether Janeway, or any other employee, had
been handing out union authorization cards. Cantrell an-
swered in the affirmative, and by April 23 Randy Brooks
had learned that there was "union activity" going on in the
store and "some of the people in the store had talked to a
union representative." 4
On April 19, 1976, the Union filed a representation peti-
tion in Case 20-RC-13492 seeking to represent the em-
ployees at Respondent's Porterville facility. Respondent
was apprised of the Union's petition on April 22.
Ivars Lusis was initially employed in April 1976 and, as
found, on or about May 18, he was designated to manage
the Porterville facility, a supervisory position. During the
first week of Lusis' service as manager at the Porterville
facility he conversed on several occasions with H. T.
Brooks concerning the Union. Brooks was at the Por-
terville facility in conjunction with undertakings associated
with the prime rib special which was featured on May 20,
21, and 22. Similarly, he had frequent conversations with
Randy Brooks concerning the Union.
In speaking with H. T. Brooks, Lusis was informed by
Brooks that none of his stores was unionized and that he
would not allow the Porterville facility to be organized by
the Union. Brooks stated, in this regard, that he would
close down the Porterville facility before he would allow it
to go union.
The initial conversation between Lusis and Randy
Brooks transpired when Lusis first reported for duty at
Porterville. Brooks summarized for Lusis' information the
"union problems" which the Company had had at the Por-
terville store and which were anticipated. In this respect
Brooks mentioned that Janeway, whom he identified as the
principal organizer, had already left the employ of the
Company but that she "might be back to cause problems"
again. He specified also Padilla, Smoot, and J. C. Reese as
employees whom he should "keep an eye on." Brooks added
that "under no circumstances" did management want the
4 The foregoing is based upon Ihe credited testimony of Rena Smoot,
Randy Brooks, Rub) Louise Janeway. and H. T Brooks.
886
PERKO'S INC.
Union in Porterville and noted that "it would be appreciated"
if the employees would leave of their own accord. Brooks
noted that the Company could not terminate them.
During the days that followed, Randy Brooks empha-
sized the nature of the union problem to Lusis. He also
spoke frequently with Lusis about Smoot and emphasized
his concern with her smoking habits, her asserted need for
a hairpiece to comply with health and sanitation rules, and
the frequency of her husband's presence in the restaurant
prior to operating hours.5
On or about April 7, H. T. Brooks met with Ralph Flores
and a union attorney in Fresno. During the course of the
meeting, Brooks expressed his dislike for unions and stated
that if the Union continued its efforts he was going to turn
the facility into offices. 6
b. Randy Brooks meets with employees
On or about April 21, shortly after he had assumed man-
agement of the Porterville facility, Brooks met with em-
ployees. The meeting was held in a small dining room in
the facility and was attended by most of the employees.
Prior to convening the meeting, Brooks had gained the im-
pression by virtue of rumors relating to the signing of
union authorization cards and the filing of "some type of
petition" that the employees were engaged in union activi-
ties. He had also formulated an opinion as to which of the
employees had attended union meetings. 7
Brooks commenced the meeting by congratulating the
staff on a good performance in the face of poor manage-
ment. He announced that some scheduled changes might
be necessitated by virtue of his effort to improve the opera-
tion of the facility, but he assured the employees that the
changes would be temporary in nature and should not be
viewed with concern.
As the meeting progressed, Brooks turned his attention
to a summation of certain of the work rules.8 Included in
this discussion was the topic of permissible hair length, and
in this regard Brooks stated that the waitresses would have
to wear their hair up or wear hairpieces in order to main-
tain a proper appearance. In this connection, he specifical-
ly pointed to Smoot and Janeway and stated that their hair
was sufficiently short to comply with the rule. Brooks also
told Rosie Cantrell that the large loop-type earrings she
was wearing were inappropriate, and she should wear only
small earrings while on duty.
5 The credited testimony of Ivars Lusis establishes the foregoing. I credit
Randy Brooks and H. T. Brooks only to the extent their testimony corrobo-
rates that of Lusis. I have considered the fact that L usis was terminated bs
Respondent in July 1976, and the circumstances of his termination. On the
entire record, including my observation of him as he testified at the hearing.
I am convinced he testified truthfully and without malice towards Respon-
dent or its officers.
6 The credited and undisputed testimony of Ralph Flores estabhlishes the
foregoing.
A careful analysis of the testimony of Randy Brooks and inferences
drawn from the record as a whole requires rejection of the testimony oI
Brooks to the effect that he did not hear these rumors until nud-Mais or
early June.
s Included in the rules was a prohibition against smoking in the restaurant
and a requirement waitresses "wear their hair up" while on duty.
As the meeting was in the process of adjourning, Smoot
approached Brooks and expressed her concern over the
planned schedule change. In substance, Smoot explained
to Brooks that she had always worked the same schedule
and any change in her schedule would pose difficulties for
her because she did not have a babysitter for her children.
Brooks noted that the more senior employees would be
permitted to retain their work schedules, and Smoot should
not be concerned.9
Under practice prevailing at pertinent times at the Por-
terville facility employees became aware of their work
schedule for the ensuing week by virtue of schedules posted
on Saturday evenings covering the following 7-day period.
Individual employees became apprised of their own specif-
ic work schedule in various ways, either by telephone or by
personal observation of the content of the schedule follow-
ing its posting. As a general rule, the waitress schedule was
prepared by the manager of the Porterville facility, but, at
pertinent times commencing with mid-April, Randy
Brooks prepared some schedules and directed the prepara-
tion of others.
Due to unforeseeable developments of a personal or op-
erational nature throughout any week, the work hours of
any given employee did not always conform to his or her
scheduled hours or days of work.
2. The alleged unfair labor practices
a. Lusis speaks with McMurrer
Soon after becoming manager at Porterville, Lusis ap-
proached Terry McMurrey. a dishwasher at the Porterville
restaurant, while McMurrey was on break and seated at
the employee break table.' Lusis asked McMurrey if he
had signed a union authorization card. He also inquired if
McMurrey were going to join the Union. McMurrey re-
sponded that if he wanted to join the Union, it was his own
business.
A few days later Lusis again approached McMurrey
near the timecard rack and asked him if he were going to
sign a union card and join the Union. McMurrey did not
respond directly but told Lusis that he had another job to
do and had to leave.I
b. It. T Brooks and Padilla meet
On or about April 21, H. 1'. Brooks visited the Porterville
facility and engaged in a conversation with Padilla. The
t Ihe foregoing is hbaed primarily upon the credited tesilmons of Rena
Smoot and Ruhb I ulose J.ianeas I credit the testimnonS of Rands Brooks
onill to the extent tha t his iesrinlon' is supportive of. or consistent with. the
foreigoiing findings Specifica ll,. I do not credio Hrooks' tetiemomn to the
effect that he gase Smin l. 1t no .ssuranes aga.inst a change In her wrk sched-
ule In tcstilsing concerning this topic. Brooks proffered testimons during
.arilus stages of the proceeding whicnh wa internalli inconsistent and self-
clnlradictor'.
"' I find I usls l a .ia .uper.sotr 'lrithin Ihe meaning of the Act when this
consersatlion transpired.
Ihr forego,\ln s :!. ino.rsn the credited testimnonl of lerrs McMur-
res As I obsersed himn tesltfs during the course of the hearing, McMurres
impressed me as a credible witness with respect io these itidclt, ; ind I flli
no hasis flr discrediting his description of these cent, Is.art I ili c ulld n11
recall having engaged McMurres in these ci'nsxera.til.tI but he s.sii uniilc
to testifs that the conversa.i on ha.i nol trin spired
887
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation transpired at the employee break table in the
small dining room. As they spoke, Brooks asked Padilla
what he knew about the "union situation" at the store.
Padilla surmized that a couple of employees had either
seen or were planning to see a union representative.
As Brooks and Padilla were seated together at the break
table, Smoot passed by carrying several food platters.
Smoot was aware that she was being observed by Brooks
and Padilla. Brooks inquired if that were "Lou." Padilla
replied that the waitress was Rena Smoot. Brooks com-
mented that she looked as though she had been "slinging
hash" for a long time. Padilla answered that Smoot and
Janeway were probably the best two waitresses in the Por-
terville operation. Brooks responded that there were "a lot
of older" waitresses in the Porterville operation, and they
were probably causing the union activity. Brooks stated
that he preferred younger waitresses and instructed Padilla
to hire three or four and to cut the working hours of Smoot
and Janeway. Janeway was sitting several feet away during
the latter portion of the conversation and overheard
Brooks' comments.' 2
c. Padilla calls Randy Brooks
After speaking with H. T. Brooks, Padilla placed a tele-
phone call to Randy Brooks and, in due course, spoke with
him. He told Brooks that he was confused by the conflict
in instructions he had just received from H. T. Brooks and
his own earlier instructions to retain the same work force at
Porterville. In this connection, Padilla told Randy Brooks
that his father had just instructed him to cut back on the
hours of work for Smoot and Janeway and to employ three
or four new waitresses. Randy Brooks stated that manage-
ment thought that Smoot and Janeway were "sticking the
Union in the Porterville store" and informed Padilla, in
substance, to follow the instructions that H. T. Brooks had
given him. Brooks added that Padilla should make out a
schedule which would eliminate the high tip days of Satur-
day and Sunday from Janeway's schedule and instructed
Padilla to make Smoot work on Sunday. Padilla stated that
he would make out a schedule, and Brooks informed Padil-
la that he would be in that afternoon to check the schedule
and approve it."
2 The foregoing is based upon a consideration of the testimony of Ernest
Padilla and Ruby Louise Janeway I credited the testimony of H T. Brooks
only to the extent that it is consistent with the foregoing findings. Specifical-
ly, I am convinced Brooks' reference to the Union was not limited to an
expression of a desire to have no discussion in the store by employees on
duty, and I do not credit Brooks' denial of references during the conversa-
tion to the involvement of older waitresses in the union activity and instruc-
tion to Padilla to hire younger waitresses and cut the hours of Smoot and
Janeway. In refusing to credit Brooks. I have taken into consideration his
testimony to the effect that some of his most proficient waitresses were older
women, and that he intended his "slinging hash" reference as a commentary
on Smoot's proficiency. However, these concepts are in no manner inconsis-
tent with the finding, which I make. that at the time in question Brooks
harbored a desire not to have his Porterville facility unionized, and it is
likely that he inferred from information at his disposal that interest in
achieving a benefits program available through the auspices of a union ran
highest among older waitresses.
3 The foregoing is based on the credited testimony of Ernest Padilla. I
have carefully considered the testimony of Randy Brooks, and I am unable
to credit his denials of the substance of his conversation with Padilla The
d. The schedule changes accomplished
As instructed, Padilla prepared a work schedule covering
the last week of April. In the draft schedule, as submitted
to Randy Brooks, Padilla removed Janeway from her Sat-
urday and Sunday shifts and reduced her total number of
hours of work to approximately 28. Smoot was scheduled
to work a similar number of hours, and her work schedule
was substantially revised. She was permitted to remain on
her Sunday shift. A significant reduction in the total num-
ber of scheduled hours for both Janeway and Smoot result-
ed. The hours of no other waitress were reduced; some of
the waitresses were assigned to work on days of the week to
which they had not previously been assigned; and the
hours withheld from Janeway and Smoot were allocated
among three other waitresses, including a newly employed
waitress, thus accomplishing an increase in the total num-
ber of scheduled hours for two members of the previously
existing waitress staff. '4
e. Janeway and Smoot react
(I) Janeway talks to H. T. Brooks
Both Janeway and Smoot learned of the schedule
changes and when Janeway learned of the proposed
change in her work schedule, she placed a telephone call to
Randy Brooks and inquired as to the reason for the
change. Brooks stated that the Company desired to bring
younger waitresses into its employ, and the change had
been made because of Janeway's age. Janeway stated that
she did not think the decision was fair and that nothing
had been mentioned to her theretofore. The telephone con-
versation was a brief one, and Brooks assured Janeway he
would get back to her. Soon thereafter, Randy Brooks con-
tacted Janeway by telephone and stated that his father
wished to speak to her. Janeway spoke to H. T. Brooks.
testimony of Brooks on cross-examination with respect to this conversation
vaned in a material sense from his testimonial denials elicited on direct
examination. Moreover, the pretrial affidavit of Brooks strongly suggests
the question of cutting the hours of Smoot and Janeway which arose dunng
the subject telephone conversation, and a possible nexus between the
change in hours and their involvement in union activities was broached.
While there is a consistency between Brooks' testimony on direct examina-
tion to the effect that he had no knowledge of their involvement with the
Union at the time of the conversation and his supportive testimony on
cross-examination in this respect, I found Padilla's descnption of the nature
and content of the conversation more persuasive, and I credit him.
4 The credited testimony of Ernest Padilla, considered in light of the
supporting testimony of Ruby Louise Janeway and Rena Smoot, establishes
the foregoing. Padilla testified from his own recollection concerning the
approximate number of hours deleted from the schedules of Janeway and
Smoot for the last week of Aprl and the approximate increase in the hours
of the three waitresses who benefited from the allocation of those hours. He
was in possession of no document which supported his estimate. In reaching
the determination that the cut in hours for Janeway and Smoot was "signifi-
cant," I have considered Padilla's testimony together with that of Janeway.
Smoot, Randy Brooks. and Ivars Lusis. I find it unnecessary to determine
the precise number of hours deleted from the proposed schedule covering
the work of Janeway and Smoc t during the last week of Apnl.
Padilla testified that in accomplishing the schedule changes he assigned
Smoot to work a Sunday shift. Significantly, Smoot's testimony contains no
such reference and, considerin;l the importance to Snioot of Sunday as a
free day in order to permit her to attend to the needs of her family. I am
unable to credit Padilla's testimony that Smoot was assigned to work on
Sundays.
888
PERKO'S INC.
At the outset of the conversation, Janeway identified
herself, and Brooks indicated he was aware of her problem.
Thereupon, Janeway stated that her hours had been cut
and that she would like to know the reason. Brooks in-
quired if Randy told her the reason. Janeway answered in
the affirmative and stated that Randy had informed her
that her hours had been cut because he wanted to get
"younger girls in there." Brooks answered, "Okay, then
there is your answer." Janeway stated that she did not
think this was fair and reiterated her earlier comment to
Randy Brooks to the effect that the question of age had not
been broached with her during the entire course of her
employment with the Company. Brooks responded, "Well.
that is what you get for joining the damn union." Janeway
stated that she did not know what Brooks was referring to.
and Brooks asked, "You didn't sign a union card?" Jane-
way answered in the negative, and Brooks asked if Jane-
way were certain. She responded affirmatively, and Brooks
asked her if she would take a lie detector test. Janeway said
she would, and Brooks again posed the question to her.
Janeway answered, "Yes sir, if you will take it too, I will
take one." Brooks asked why he should submit to a lie
detector test, and Janeway then recounted the content of
the conversation which she had overheard in the restaurant
between Padilla and Randy Brooks relating to the suspect-
ed role of the older waitresses in the effort to unionize the
facility, as well as the related instruction issued by Brooks
to reduce her hours of work and those of Smoot. Brooks
was noncommittal in responding to Janeway's narrative
and dropped the discussion of a lie detector test. However,
he inquired if Janeway had a hairpiece. She stated that she
did not, and Brooks instructed her to wear one the follow-
ing day while she was on duty or she would be terminated.
Janeway answered that her hair was too short to permit her
to wear a hairpiece, but Brooks reiterated his instruction.
adding he didn't care if she had to tie the hairpiece on.
As the conversation drew to a close, Brooks stated that
he was coming down to the store to take personal charge
for a "couple of weeks" and that if he observed any of the
waitresses smoking in the restaurant they would be termi-
nated. Brooks added that before he would let the Por-
terville facility "go union," he w,'ould convert it into an
office complex.' 5
5 The foregoing is based upon the credited testimony of Rub) Louise
Janeway. I have carefully evaluated the testimony of H. T. Brooks relating
to this conversation and am unable to credit his version of the dialogue
between him and Janeway. In crediting Janeway and rejecting the testimony
of Brooks, I am convinced, contrary to the description proffered by Brooks.
that during the course of the conversation Janeway neither confessed her
activity on behalf of the Union nor proclaimed her dislike and disinterest In
the Union. Further, I am unable to credit Brooks' testimony to the effect the
subject of a lie detector test entered the conversation as a result of
Janeway's profession of willingness to submit to such a test in order to
establish her lack of involvement in the Union.
While I am aware of the economic dependency upon her job which resid-
ed with Janeway at the time of the conversation in question, as I observed
Janeway testify at the hearing she did not impress me as a submissive indi-
vidual easily cowed, and I discern no reason why, at that point in time.
Janeway would have felt compelled to initiate a dialogue concerning her
involvement with the Union. Nothing that Randy Brooks had stated in the
earlier conversation would have served as a precursor to such a reference.
and it is more likely, in my view, that the reference to union activities
(2) Smoot speaks to Padilla
When Smoot learned of the reduction in her scheduled
hours, she approached Padilla and asked the reason for the
reduction. Padilla told Smoot he had been instructed by
Randy Brooks to cut back on the hours of the "older girls"
and to employ some younger waitresses. Padilla volun-
teered that Brooks wanted to oust the employees who were
the instigators of the Union and that that was the real rea-
son for the reduction. Smoot replied that she would not
quit regardless of whether her hours were reduced or not.'6
f. Janeway and Nast converse
The day following Janeway's conversation with H. T.
Brooks, Thomas Nast placed a telephone call to Janreway.
Prior to doing so, Nast had spoken with Brooks. In con-
versing with Janeway, Nast identified himself as an attor-
ney representing Perko's, and he stated that he was calling
in regards to the conversation which had transpired the
previous day between Janeway and Brooks. Nast then stat-
ed, "Mr. Brooks told me that you had volunteered to take
a lie detector test." Janeway agreed to take the test, and
Nast gave her a telephone number to call. Then, Janeway
responded that she would not take the test unless she
cleared it with her attorney. Nast asked Janeway to pro-
ceed to obtain such clearance and to let him know.
Janeway then stated that she had a complaint to register
and proceeded to inform Nast of the instructions which she
had received from H. T. Brooks to wear a hairpiece. Jane-
way informed Nast she had purchased a wig for $18 and
could not wear it."7 Nast told her that she did not have to
wear the wig, and she would be reimbursed if she would
send him the bill. Janeway assured Nast she would do so
and the conversation ended.
Soon thereafter, Janeway placed a telephone call to Nast
and informed Nast that her attorney had instructed her not
to speak further with Nast concerning the matter. Nast
noted her statement, thanked her for her call, and the con-
versation ended. '8
originated with H. T Brooks This is so because, by the time this conversa-
tion transpired, Brooks had developed a keen interest in countering the
unionization effort which he opposed Moreover, a careful analysis of
Brooks' testimony, as well as my observation of him as he appeared before
me and testified as a witness with respect to the instant conversation. reveals
an element of evasiveness and inconsistence which detracts substantially
from the belhevability of Brooks' version of the conversation A careful
analysis lof Brooks' testimony on direct examination and cross-examination.
as well as a consideration of the pertinent content of his pretrial affidavit as
delineated during the course of his testimony before me. requires a rejection
of Brooks' testimony with respect to the instant conversation
I6 the credited testimony of Rena Smoot establishes the foregoing. Ernest
Padilla was not interrogated concerning this conversation.
L The record establishes that following her conversation with Brooks.
Janewas purchased ai hairpiece and wore it in the restaurant prior to going
on duty as a means of focusing attention on the Incompatibility of her short
hair style with the wearing of a hairplece.
"' The foregoing is based upon the credited testimony of Thomas Nast I
am unable to credit Janeway's version of the conversation. Intially. I relec
Janeway's testimony to the effect that Nast informed her during the course
of the consersation he had a tape recorder affixed to the telephone which
permitted him to record the conversation if he decided to do so Moreover.
I find implausible Janewas's testimony to the effect Nast asked her if she
had signed a union card Further. I discern no convincing reason why a
Con rin ued
889
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
g. The managers' meeting
A few days later on or about April 27, H. T. Brooks held
a meeting of store managers at the Saven Restaurant. In
attendance were Randy Brooks, Ernest Padilla, and the
managers of three other facilities operated under the direc-
tion of H. T. Brooks. At the outset of the meeting, H. T.
Brooks approached Padilla and asked how Janeway had
found out about the reduction in her hours. Padilla replied
that he did not know, but he surmized that Janeway may
have overheard their earlier conversation because she had
been sitting nearby when they had conversed a week earlier
concerning the cutback." During the meeting, the organiz-
ing effort at the Porterville store became a topic of discus-
sion, and Randy Brooks stated that the Union was creating
"pull-tug situation" in Porterville. H. T. Brooks noted the
planned opening of the Selma store might have to be post-
poned until the "Union situation" was settled. As the dis-
cussion progressed, H. T. Brooks instructed Padilla to get
rid of Smoot and Janeway, and he suggested that to facili-
tate this he appoint Rosie Cantrell to the position of lead
waitress and increase her pay. He also inquired if either
Smoot or Janeway were smokers, and upon receiving an
affirmative answer, he suggested Padilla issue a memoran-
dum stating that employees who smoked either on or off
duty would be terminated. He also instructed Padilla to
enforce a rule requiring Smoot and Janeway to wear hair-
pieces. Brooks subsequently retracted his nonsmoking sug-
gestion stating that it might appear suspicious. In this con-
nection, Brooks observed if the National Labor Relations
Board ever learned he was "harassing" his employees he
would be "in a lot of trouble." He observed, however, he
would deny any such allegation. For his part, Randy
Brooks observed the Union had harmed the Porterville em-
ployees because the efforts to organize had caused conflicts
and harmed morale. Randy Brooks stated, in effect, the
friction derived from the notion of the employees that
management did not want a union. 20
second telephone conversation initiated by Janeway would have been neces-
sary if, as Janeway asserts, she had given a definitive commitment to Nast
to submit to a polygraphic test during the initial conversation. As I view the
matter, Nast was not so unsophisticated in the potential pitfalls of dealing
openingly and directly with Janeway to have spoken in the manner attribut-
ed to him by Janeway.
l9 Janeway had spoken by telephone to Padilla following the earlier con-
versation and had related what she had overheard.
20 The foregoing is based upon the credited testimony of Ernest Padilla. I
credit the testimony of Randy Brooks and H. T Brooks only to the extent
it is consistent with the foregoing findings. None of the three managers who
attended the meeting was called as witnesses. although two of the three
were shown to still be in the employ of Respondent.
I specifically do not credit the testimony of H. T. Brooks to the effect the
meeting in question did not transpire unitl May, and at the point in time of
the meeting, he had no kniowledge of the Board or its processes. Further. I
do not credit H. T. Brooks' testimony that there was little or no talk of the
organizational effort underway at Porterville. This testimony is at variance
with that of Randy Brooks and Ernest Padilla. On the whole. H. T. Brooks'
accounting of his recollection of the meeting is not worthy of credit. The
accounting contained in the testimony of Randy Brooks was highly equivo-
cal and rationalized and will not stand careful scrutiny when compared
against the more convincing testimony of Padilla.
h. The extent of the schedule change
Smoot and Janeway credibly testified that they worked a
diminished number of hours during the last week of April.
However, Smoot's work schedule for the following week
was again revised to accord her a greater number of sched-
uled hours of work. The record reflects that, for the 2-week
period ending May 5, Smoot actually was compensated for
71.5 hours of work, as contrasted to the 86.5 hours of work
for which she was paid during the 2-week period ending
April 2 0 .21
i. Randy Brooks speaks with Padilla and Janeway
In the meantime, on the afternoon of May 2 after Jane-
way had completed her shift, she participated in a conver-
sation with Padilla and Randy Brooks. Brooks had ap-
proached Janeway and stated that he wished to speak with
her and Padilla. Thereupon Brooks stated that he believed
the employees respected Padilla and Janeway, and he in-
quired if they could obtain the confidence of the employees
and assist him in extracting the Company from the "union
mess." He noted in this regard if this could be done, it
would be a "a feather in his hat" with his father and that he
would reward Padilla and Janeway. Both Janeway and Pa-
dilla were noncommittal. Brooks added that if the Union
were not successfully countered, the "store would be closed
22
j. The termination of Janeway
The termination of Janeway transpired on May 4. Jane-
way had come to the Porterville restaurant as a customer
during her off-duty hours. While she was in the coffeeshop
portion of the facility, Randy Brooks approached Janeway
and engaged her in a general conversation. After they had
conversed together for a short period of time, Janeway re-
quested Brooks to cancel her company insurance explain-
ing she had purchased some insurance from another source
because she could obtain "a more reasonable rate." A cus-
tomer was seated at the counter approximately 5 feet away
when Janeway made this comment. Upon hearing
Janeway's request, Brooks requested Janeway to come with
him into his office. Janeway picked up her cup of coffee
and followed Brooks into his office. After Janeway had
entered the office, Brooks kicked the door closed with his
foot and said, "Lou, you have to quit talking about the
company." Janeway responded that she did not know what
he was talking about. Then, Brooks asked Janeway if she
had signed a union card. Janeway answered in the affirma-
tive and Brooks stated, in substance, that in doing so Jane-
way was inferring the Company was no good. Janeway
stated that this was not accurate, but by signing a union
card she was merely seeking to have better insurance and
" During the 2-week period ending April 20, Janeway was compensated
for 83 hours of work. The payroll records in evidence do not reflect the
number of hours for which Janeway was paid between April 21 and May 4,
when she was terminated.
22 The foregoing is based upon the credited testimony of Ruby Louise
Janeway. I do not credit the testimony of Randy Brooks with respect to this
incident.
890
PERKO'S INC.
benefits from the Company. Thereupon Brooks stated that
he was going to speak with Nast. 23
Thereupon, Brooks placed a telephone call to Nast and
stated to Nast, "Louise is in the store causing a problem at
the front. She is running the company down, saying she is
overcharged for insurance in front of customers. She wants
to talk to you." Nast told Brooks to wait a moment and he
secured a file containing, among other records, a timecard
and insurance records pertaining to Janeway. When Nast
was ready to converse with Janeway he so indicated, and
Brooks handed the telephone to Janeway who commenced
her conversation with Nast. As they began to speak togeth-
er, Janeway received the impression Nast was recording
the conversation. She communicated her suspicion to Nast.
Nast was using a speaker telephone which amplified the
voices of the participants in the conversation and which
rendered use of the conventional receiver unnecessary.
Nast's secretary heard Janeway speaking. Nast denied he
was recording the conversation but Janeway said in a
raised voice, "Get off that thing." She added that if Nast
would do so she would talk to him. Nast refused, and Nast
instructed her to give the telephone to Brooks. Janeway did
so. Brooks came on the line and Nast stated, "lf the wom-
an will not talk to me, I cannot solve the problem. So ter-
minate her." Brooks answered, "Okay," and the conversa-
tion ended.
At this point, Brooks turned to Janeway and said, "Lou,
I hate to do it, but Mr. Nast says I have to fire you, and I
have to do it." Brooks assured Janeway it had nothing to
do with her work performance or her ability as a waitress.
He noted, however, she was being terminated because she
had called H. T. Brooks a liar. Janeway denied having
done so. The meeting ended on this note.24
Smoot observed Brooks soon after Janeway's termina-
tion, and he appeared visibly shaken. He denied having
terminated Janeway.
Later that evening Brooks contacted Janeway by tele-
phone and again stated his regrets over the necessity of
23 The foregoing is based upon the credited testimony of Ruby Louise
Janeway. I have carefully considered the testimony of Randy Brooks in
light of that of Janeway. Rena Smoot, the related testimony of James Nast,
and the content of Brooks' pretrial affidavit. This analysis provides no basis
for crediting Brooks to the effect that, in the office Janeway lodged com-
plaints about the high cost of the company insurance coverage and the
failure of the Company to compensate her for overtime worked, thus giving
rise to a verbal dispute in which voices were raised. Janeway's testimony
lends no support to this version, and the record establishes, in speaking
subsequently to Nast, Brooks' concern was only with Janeway's asserted
disparagement of the Company in front of customers.
On the other hand, I do not credit Janeway's testimony to the effect that
before calling Nast, Brooks stated he was going to have to fire Janeway.
This testimony is illogical when viewed against subsequent happenings, and
Janeway showed a lack of certitude on this score when questioned on cross-
examination.
24 The foregoing is based upon a composite of the credited testimony of
Ruby Louise Janeway, Thomas Nast, and Janis John. I have also consid-
ered the testimony of Randy Brooks and credited it only to the extent it is
consistent with the foregoing. To the extent the testimony of either Nast or
Janeway is at vanance with the above finding, I reject their respective testi-
mony.
In this specific regard, in finding that Janeway was firm and definitive in
her refusal to speak with Nast on the telephone instrument over which he
was then conversaing, I reject the testimony of Janeway to the effect that
her declination was not terse, declarative, or loudly spoken.
having to terminate her. As he had earlier done, he assured
Janeway her work performance was not a factor and that
the action was taken on orders of Nast.2 5
k. The May 5 employee meeting
After close of business on May 5, the day following
Janeway's termination, the Company held a meeting of
employees at its Porterville facility. The employees were
paid for the time spent in attending the meeting. Nast pre-
sided at the meeting, and Randy Brooks was also in atten-
dance.
Nast commenced the meeting by sketching a brief his-
tory of the Company and outlining its corporate structure.
He alluded to financial losses suffered at the Sanger facility
of the Company and stated that Randy Brooks was at the
Porterville facility to assist in improving its operation. In
this connection, Nast stated that the Porterville restaurant
was also losing money and alluded to the need for cutting
the hours of work of employees. Nast referred to the rela-
tionship between the wages of the employees and the pros-
perity of the Company and stated that if the operation
prospered, the employees who desired it would receive a
raise and would benefit. He asked the employees to give
management "another chance" and wait for a time to see
what happened.
During the course of his remarks, Nast expressed the
preference of the Company for a nonunion operation but
assured the employees of their right to decide the question
free from threats or coercion either from employer or
union sources.
As the meeting progressed, employees endeavored to
draw Nast into a discussion of specific issues relating to the
organization of the operation, but he refrained from any
philosophical exchange. However, Nast stated, in this re-
gard, the Company had a right to know what had been said
to the employees regarding the Union, and he asked the
employees to raise their hands if they had been promised
anything by the Union. There was no show of hands.
Nevertheless, Nast stated that he was aware that em-
ployees had signed authorization cards and expressed a de-
sire to know who had signed cards and who had "dealings"
with the Union. He then asked for a further show of hands.
Again, no hands were raised. At this juncture, Chuck Mc-
Lenithan, a supervisor of the Company, addressed the
group and remarked about the apparent "feeling of ani-
mosity between employees and management" that was dis-
cernible to him. He suggested that the employees "open
up." In response, one of the employees made a statement
invoking Nast's response that the Company could not in-
terfere with the employees' rights to organize. This led to a
recess of the meeting, and Padilla, who had been in atten-
dance, left the meeting room.
However, Padilla returned to the meeting when it re-
sumed and addressed a question to Nast. He referred to
Janeway and stated that, "probably the best waitress in the
store" had been terminated. Padilla asked if it were true
Janeway had been terminated for refusing to talk to him.
- The credited testimony of Ruhb Louise Janeway and Rena Smoot es-
tablishes the foregoing.
891
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nast confirmed that this was the reason. Padilla then noted
Janeway had not been on duty at the time of her refusal
and inquired into Nast's authority to have taken the action.
Before Nast could answer. Smoot interjected and asked if
it were not true that Janeway had been terminated because
of the Union. Nast offered no reply.
As the meeting continued. Smoot inquired whether the
hours of work had been cut because of the Union. Before
Nast could answer, McLenithan interjected and stated the
schedule modification had been placed into effect in an
attempt to reduce labor costs. Smoot asked, "Well, if that
is true, how come newer girls are getting the hours I had?"
McLenithan denied that the reduction in hours was related
to the Union.
Dee Edwards, a waitress at the Porterville facility, then
expressed her concern over the fact only Smoot and Padilla
seemed to understand the background of the matter then
under discussion and only they knew "anything about the
Union." This caused Padilla to assert, "We all knew what
we were getting into when we signed these cards, and what
was ahead of us." Nast commented, "Well, wait a minute,
I thought that nobody talked to the Union." 26
1. The termination of Ernest Padilla
(1) Padilla's resignation as acting assistant manager
A few days after the termination of Janeway, Padilla
spoke with Brooks in the kitchen of the Porterville facility.
He informed Brooks he was no longer willing to serve as
acting assistant manager and expressed his unwillingness
to participate in the manipulation of the work of employ-
ees, including Smoot, in order to "get rid" of them because
management thought them to be interested in unionizing
the operation. Padilla stated that he did not believe such
manipulation was right. Randy Brooks replied that his fa-
ther had told him to "kind of cool it," but Padilla adhered
to his decision to resign as acting assistant manager.
As they spoke, Brooks inquired whether Padilla felt the
Union was causing conflict among the employees. Padilla
remarked that some of the employees favored a union
while others did not. As a consequence of this discussion,
Padilla resigned his position as acting assistant manager
and returned to his former position as lead cook with no
supervisory authority. 27
26 The foregoing is based primarily upon a composite of the credited testi-
mony of Ernest Padilla. Rena Smoot, and Thomas Nast. I have also consid-
ered the testimony of Randy Brooks. Marie Edwards, J. C. Reese. and
Peter Alamanaza and credit that testimony only to the extent it is consistent
with the findings above made. Specifically. I do not credit the thrust of the
testimony of Alamanaza, Reese, and Edwards relating to the paucity of
dialogue concerning the Union during the course of the meeting. The testi-
mony of Nast establishes he did ask employees for a show of hands with
respect to union contacts and exaggerated claims advanced by union repre-
sentatives to employees. In this context. I am unable to credit Nast's denial
to the effect that no reference was made during the course of the meeting to
union authorization cards or to the termination of Janeway. I conclude his
recollection in this regard is faulty, and I find the testimony of Smoot and
Padilla more reliable in this regard.
27 The foregoing is based upon a composite of the credited testimony of
Ernest Padilla and Randy Brooks.
(2) The termination effectuated
During Padilla's shift on May 19, he approached a booth
in the main dining room of the Porterville facility in which
H. T. Brooks was seated. Brooks told Padilla he wished to
speak to him in order to review a set of general work rules
which Brooks had in his possession. Padilla sat down, and
he and Brooks briefly discussed the rules. As they were
seated in the booth, Brooks asked Padilla if he was still
angry over the termination of Janeway. Brooks added that
he did not wish Padilla to be angry because they were good
friends and wished Padilla to be part of the management
team. Brooks noted that he had too much invested in the
Porterville facility to permit it to be unionized, and assert-
ed that he would rather change the restaurant facility into
an office complex. Padilla responded, in substance, that he
had heard so many conflicting positions from so many differ-
ent individuals that he did not wish to talk about the matter
of the Union and his own future. 28
On May 21, 22, and 23, Respondent ran a prime rib
sepcial at its Porterville restaurant. On Saturday evening,
May 22, at approximately 6 p.m., Padilla entered the res-
taurant accompanied by Janeway and her son. Padilla had
not worked during that day or the previous day because
they were his normal days off. Janeway had not been in the
facility since her termination. Padilla, Janeway, and
Janeway's son entered the restaurant as customers and
were seated at a booth in the main dining room immedi-
ately upon entering the restaurant. After they had been
seated for a few minutes, they were observed by H. T.
Brooks who was present at the facility in connection with
the special. Upon observing Janeway, Brooks approached
the booth where Janeway and Padilla were seated and
asked Janeway if she had not been informed she was not to
be in the Porterville facility or any of the other facilities
operated by the Company. Janeway answered in the nega-
tive, and Brooks stated he was informing Janeway of this
and admonished her to leave when she had completed her
meal. Brooks left and returned to the kitchen where he was
assisting in the preparation of the food.
Padilla, Janeway, and her son were served and in ap-
proximately 30 minutes completed their meal. They lin-
gered for 5 or 10 minutes, and Brooks was aware of this.
He placed a telephone call to Nast and thereafter ap-
proached the booth and sat down next to Padilla. Janeway
and her son were seated across the table in the same booth.
In a conversational tone, Brooks stated that he wanted Pa-
dilla and Janeway to leave the store. Janeway answered
that they were merely having dinner, and when they had
completed the dinner, they would leave. Brooks stated that
if it were necessary he would call the police, and Janeway
stated that if he desired to do so he should. Brooks asserted
that Janeway was coming into the store and poisoning the
minds of the employees, but Janeway answered she was
merely having dinner. Brooks interjected that the differ-
ence between Janeway and himself was his money, and
Janeway answered that if he was going to "burn in hell" his
money would do him no good. Brooks responded that, in
the meantime, his money would help him "take care of
28 The credited testimony of Ernest Padilla establishes the foregoing.
892
be be permitted to work. Brooks stated that if Padilla was
creating disturbances he should be asked to leave the res-
taurant.3 0
Padilla was summoned to the telephone and he spoke
with Brooks. Brooks asked Padilla what he was doing at
the restaurant, and Padilla answered that he was there to
work. Brooks stated, "You quit last night," but Padilla stat-
ed that he had not done so. Brooks asserted, in substance,
that Padilla's lying would not alter the matter, and added
Padilla should watch the people with whom he associated.
He made further reference to Padilla's asserted relationship
with Janeway to which Padilla responded, "Mr. Brooks, I
don't know what you're trying to do, but I did not quit."
On this note, Padilla hung up the telephone.
Padilla did not work in Respondent's employ thereaf-
ter. Hie subsequently applied for unemployment compensa-
tion, and he informed the agent there existed a "discrepen-
cy" or "uncertainty" with respect to whether he had quit or
was terminated. Then, approximately a month after filing
for unemployment compensation, Padilla dispatched a let-
ter to Brooks indicating his willingness to resume his em-
ployment. In the letter Padilla also made reference to "sec-
ondhand reports" from employees of the Company to the
effect Brooks was interested in reinstating him. This led to
an exchange of correspondence and a face-to-face conver-
sation between Brooks and Padilla.
The conversation transpired at a facility of the Company
approximately 5 weeks after Padilla had filed for unem-
ployment compensation. In speaking with Brooks, Padilla
stated, in effect, he could not understand why he had been
treated in the manner he had been. Brooks stated, in sub-
stance, that he realized Padilla had done a good job, but he
objected to the people he "hung around with." Padilla sug-
gested that he was speaking about Janeway, Smoot, and
the Union, but Brooks was not responsive in this regard
and expressed the hope Padilla had "learned a lesson."
Brooks added he did not want Padilla to "associate with
those kind [sicJ of people anymore." Padilla responded that
Brooks could not tell him with whom he could associate.
Padilla added that Brooks "could take the job back" be-
cause he didn't want it. The conversation ended, and Padil-
la did not thereafter speak with Brooks concerning em-
ployment."
m. Brooks speaks with Smoot
On May 19 H. T. Brooks spoke with Smoot in the small
dining room of the Porterville facility. The conversation
was initiated by Brooks who asked why Smoot had been
avoiding him. Smoot stated that she had not been doing so,
but Brooks asserted that Smoot had made a comment that
morning to the effect he, Brooks, had come to the restau-
rant to "harass" Smoot about the Union. Smoot asked
Brooks what she was supposed to believe since he had not
even attended the grand opening of the Porterville restau-
rant. Brooks stated that he was not there to harass but to
1" The credited testimons of Ialrs Iusl, and Ernesl Padilla supports Ihe
foregoing.
The foregoing is based prlmarlls upon Ihe credited testirmons of Ernest
Padilla,. as supported in certain iniLances hs the testilmons of Rena Smoot.
I do not credit the iestrimlns of } I H Brooks to the extent it i, Inconsistent
aith the foreotlng findings.
sluts like you." Brooks then spoke directly to Padilla and
stated that he had better make up his mind whether he
wanted to "go any place" with the Company or whether he
preferred to associate with "people like this." Padilla respond-
ed, "Mr. Brooks, you are helping me make up my mind."
Thereupon, Brooks arose and left the booth smiling. After
he had done so, Janeway's son asked the meaning of the word
"slut."
At the time of this conversation, and prior to the time
Brooks approached the booth, the 100-seat restaurant was
fully occupied and customers were waiting to be seated.
Upon leaving the booth, Brooks summoned the police.
In essentially contemporaneous fashion, Padilla, Janeway.
and her son left the booth and departed the restaurant. As
they exited, they were met by two police officers, and a
brief discussion ensued. No citations were issued nor ar-
rests made.29
After Padilla and Janeway had left the restaurant,
Brooks informed Ivars Lusis, then serving as assistant
manager of the Porterville facility, that Padilla had quit.
Brooks instructed Lusis to find a replacement for him.
The following morning at approximately 5:30 a.m., Pa-
dilla reported for duty at the Porterville facility wearing
part of his uniform. Lusis asked Padilla what he was doing
there, noting he had been informed by Brooks that he had
quit. Padilla stated he was present to report for duty and
that he had not quit his job. Padilla added that it looked
like a "set-up" and noted he was scheduled to work and
was going to work. Lusis responded, however, that Padilla
was not going to work and scratched Padilla's name from
the cooks' schedule. Nonetheless, Padilla proceeded to the
kitchen, but Lusis would not let him enter. He told Padilla
that if he wished to speak with Brooks, he would be in the
facility later on and Padilla should sit out in front and wait.
Padilla acquiesced, and Lusis placed a telephone call to
Brooks. In due course, Brooks returned the call, and Lusis
related the events which had transpired. Brooks responded
that Padilla had quit and under no circumstances should
29 The foregoing findings are based primarily upon the credited testimony
of Ernest Padilla and Ruby Louise Janeway. I have also considered the
testimony of H. T. Brooks and credit it only to the extent it is consistent
with the foregoing findings.
Specifically, I credit the testimony of H. T. Brooks to the effect that
during the critical portions of the presence of Janeway and Padilla in the
restaurant there was a demand for table accommodations due to the influx
of customers. Moreover, I credit Brooks to the effect Padilla and Janewas
lingered at their table after the completion of their meal. Janeway and Pa-
dilla conceded they were at the restaurant for a minimum of 60 minutes.
and finding that Brooks approached them initially very soon after thes were
first seated is based upon their testimony. Further, both Padilla and Jane-
way estimate that approximately 30 minutes was consumed in the service
and completion of the meal. The second conversation at the booth between
Brooks, Janeway, and Padilla was not an extended one, and it is thus clear
Brooks was essentially accurate in his testimony he was motivated to ap-
proach the table a second time by the demonstrated intention of Padilla and
Janeway to continue to occupy the booth while customers were waiting
table accommodations.
On the other hand, I am unable to credit the testimony of H. 1. Brooks
suggesting his comments to Padilla and Janewa) were essentially bland and
limited at the outset to his desire to have access to the booth in order to
serve waiting customers. The testimony of neither Padilla nor Janewav In
any of its elements supports the inferences of Brooks' testimon . and other
record evidence establishes hostility to employees whom he believed to be
supportive of the organizing effort. as well as his resort to direct. earths
terminology in articulating his directives concerning them.
PERKO'S IN(. 893
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assist in revitalizing the operation and helping the employ-
ees to do their jobs. Brooks handed Smoot a copy of em-
ployee rules stating these were going to be followed, and
everybody was going to do their job. Smoot observed that
if management would leave the employees alone and stop
causing conflict between them, this could be accomplished.
Brooks denied management was the source of conflict and
reiterated he was merely interested in having the employees
do their job. Smoot stated that Janeway had "done a good
job" and inquired why she had been terminated. Brooks
did not respond and Smoot stated, "Well, you know I am
for the Union." She added that if a vote were held, every-
thing would be straightened out. Brooks replied that he was
not going to have his "stores going Union." Smoot responded
that the employees were interested in organizing only the
Porterville facility. In this connection, Brooks stated that he
would convert the facility to office buildings or sell it to
someone else and permit them to hire new employees. This
led Brooks to explain the extent of his financial investment
in the operation and, in context of Brooks' remarks, Smoot
observed that Nast had stated the hours of employees had
been cut because of the Union. Brooks responded, "Yeah,
and if you don't like that, I can cut them out altogether."
Smoot asked if that was a threat and Brooks responded,
"When you threaten a child, don't you usually carry.
through?" Smoot answered, in substance, that she raised her
voice all the time to her children but had never carried out
her threats. This ended the conversation between them.
o. The May schedule changes
During the week that followed, the scheduled working
hours for many employees, including Rena Smoot, were
modified by Lusis. Lusis accomplished these schedule revi-
sions on the recommendation of H. T. Brooks. Brooks had
suggested that Lusis hire new employees to "replace the
people that were expected to be leaving in the future" and
to schedule sufficient hours of work for them to integrate
them into the operation. In order to achieve this, Lusis cut
the hours of work of certain of the personnel. Smoot's
hours were reduced, and she was scheduled for Sunday
work. Lusis accomplished this because he felt it was "expe-
dient" to cut the hours of work of the employees to whom
Brooks kept referring. In explanation for his actions, Lusis
testified:
Generally, just the fact that someone's hours had to be
cut, and based on what Mr. Brooks had informed me,
he said it would be advantageous if she [Smoot] did
leave, and I felt that possibly in the process of cutting
her hours, she would leave ....
When he made the schedule change, Lusis was aware that
Smoot had not theretofore been scheduled for Sunday
work because of a babysitting problem. Lusis anticipated
that under future schedules he would continue to assign
Smoot to a Sunday shift.
p. Smoot resigns her employment
n. Smoot speaks with Lusis
A few days later, on Padilla's last day of work, Smoot
spoke with Lusis at the employee break table and asked
Lusis why Padilla had been sent home. She asserted he had
not quit. Lusis replied he had been following Brooks' in-
structions.
As they conversed together, Smoot asked Lusis when
they were going to get rid of her. She added, "You know
they are trying to get rid of me because of the Union and
everything. They think I helped start it." Lusis replied that
he knew "everything they have been doing," adding rhetor-
ically, "But I didn't say that." Smoot answered that she
would not quit, and the Company would have to terminate
her in order to get rid of her. Lusis replied that this may
come sooner than Smoot might think. Lusis then added the
Company had been "thinking about tearing the wall out of
the small dining room and remodeling" but with the prob-
lems they were having with employees, management might
close the facility for 2 or 3 months and remodel completely.
As the conversation continued, Lusis and Smoot dis-
cussed the percentage of votes necessary to obtain union
representation. Lusis ventured the prediction that the
Union would not prevail because the employees would not
vote for it. Smoot asked why management would not let
the matter go to a vote. Lusis responded, in substance,
management harbored apprehension over the outcome of
the election. 2
r2 rhe credited and undisputed testimony of Rena Smoot establishes the
foregoing, Ihe testimony of T erry McMurrey lends support to Smoot's testl-
Smoot learned of the scheduled change on Tuesday,
May 24, when she reported for work in time for her 6:30
a.m. shift. She spoke with Lusis and explained to him she
could not work the proposed schedule, because she had to
pick up her children at school at 4 p.m. on weekdays. She
noted that Randy Brooks had assured her neither her hours
nor days of work would be changed. Lusis responded that
when Randy commenced managing the facility, he could
start scheduling the work. Lusis added, "Besides, I don't
want your husband in here before we open in the morn-
ing." Smoot asked for an explanation of this, stating, in
substance, that Lusis had observed her husband in the res-
taurant prior to opening and had never commented to her
about the matter. Lusis was noncommittal and refused to
modify the schedule.
The following morning, Smoot entered the restaurant at
approximately 7 a.m. and informed Lusis that she was re-
signing. Smoot apologized for the short notice but ex-
plained she could no longer take the "harassment" as evi-
denced by the schedule changes and the directives
concerning the length of her hair. She added that she could
not take "all the conflict" and continue to work under the
existing conditions and so was quitting. Smoot inferred the
"harassment" had resulted from her interest in the Union,
but Lusis denied this. Smoot handed Lusis he.' apron and
Lusis said, "Well, I don't blame you."
Soon thereafter Lusis contacted the Fresno office by
telephone and requested that Smoot's final paycheck be
issued because she had resigned. Approximately 30 min-
moln. I do not credit the denial interposed by H. T. Brooks.
894
PERKO'S INC.
utes later, Nast telephoned Lusis and with reference to
Smoot said, "Congratulations. How did you do it?" Lusis
replied Smoot had quit because of the schedule changes he
had made. 33
During the month of May, following Janeway's termina-
tion and prior to the separation of Smoot from employ-
ment, H. T. Brooks spoke with Smoot and asked when she
was going to put her hair up. Smoot responded that her
hair was too short to be "put up" and consequently there
was nothing she could do about the matter. Brooks did not
thereafter speak with Smoot on the topic.
However, approximately 45 minutes later, Lusis ap-
proached Smoot, and Smoot inquired why Brooks was
"bugging" her about her hair. She observed that her hair
was too short to be put up. Lusis responded that he could
not understand the matter either.
On several occasions prior to the termination of Smoot,
however, H. T. Brooks spoke to Lusis concerning the
length of Smoot's hair and inquired if she had "gotten her
hair up." Moreover, Randy Brooks pursued the matter fre-
quently with Lusis. Lusis spoke to Smoot about the length
of her hair, and Smoot took the position her hair was too
short to be worn in the style suggested. Lusis found
Smoot's hairstyle unobjectionable when measured against
the standards applicable to foodhandlers and waitresses in
the restaurant business. 34
Smoot credibly testified, in substance, that commencing
soon after she started working at Porterville, her husband
came daily to the restaurant while she was on duty. Her
husband, Rusty Smoot, was working nearby and would pa-
tronize the restaurant as a customer. He frequently patron-
ized the restaurant in the early morning hours and would
be in the facility with Smoot 30 minutes before the restau-
rant was opened to the public. After Lusis registered his
disapproval of the practice on May 24, Rusty Smoot
ceased coming to the restaurant during the early morning
hours. It was not uncommon for employees to dine in the
restaurant as customers with their families.3 5
3. Respondent's defense outlined
As of March 31, the Porterville facility was operating at
a loss. Representatives of the Company testified the sched-
ule of hours for all waitresses at the Porterville facility,
33 A composite of the testimony of Rena Smoot and lvars Lusis supports
these findings. I am unable to credit Lusis' testimony that, in assuring
Smoot the difficulties she was experiencing in her employment were not
related to her union activities. he felt he was speaking the truth. This frag-
ment of testimony is inconsistent with the thrust and meaning of much of
Lusis' testimony relating to Smoot and cannot be reconciled. I do not credit
Lusis in this respect.
34 The foregoing is based upon the credited testimony of Rena Smoot and
Ivars Lusts. At the time of the heanng. Smoot's hair was short when mea-
sured by any commonly accepted standard. Lusis was of the opinion that
Smoot was wearing her hair longer at the time of the hearing than the period
preceding her resignation.
5 Both Smoot and Janeway smoked. and they testified that at no Ilme
prior to the mid-April period coinciding with the emergence of the organiz-
ing effort were they ever reprimanded for their smoking habits while on
restaurant premises. There is no evidence suggesting that they smoked on
duty at any time material. H. T. Brooks testified, in substance, that the rules
he sought to enforce at Porterville relating to smoking were common ones in
the industry and were ones in effect throughout his restaurant chain.
including Janeway and Smoot, was modified to lower the
ratio between cost of labor and volume of sales; to more
evenly distribute the hours of work among the waitresses;
to facilitate improved opportunity on the part of supervi-
sion to observe all employees; and to improve the efficien-
cy of Smoot, Janeway, and all other waitresses by bringing
their hours into close conformity with the standard of 30-
35 hours per week customary in the industry. H. T. Brooks
denied that these schedule changes were related, in any
manner, to the organizing efforts in progress at Porterville
in April and May. He testified further that schedule
changes are routine in the restaurant business, and the re-
scheduling of the hours of work of Smoot and Janeway was
in no manner unusual.
In this connection, payroll records in evidence reveal
that following Janeway's termination. waitresses at Por-
terville frequently worked an average approximating 35
hours per week and the hours of many exceeded that fig-
ure.
In a similar context, H. T. Brooks testified that he did
not consider either Janeway or Smoot to be too old to serve
proficiently as waitresses and knew some of his best wait-
ress employees to be 20 years senior to either Janeway or
Smoot.
Insofar as hair styles for waitresses are concerned, Brooks
testified that he required the hair to be worn "off the neck"
or that hairpieces be worn. This was a universal require-
ment in Respondent's enterprise, according to Brooks.
Randy Brooks testified that, after coming to Porterville,
he observed Janeway while she was on duty at the restau-
rant facility. He testified in this respect that as he observed
her performing her work duties, she was "very loud" and
"a little bit later than she should have" been in picking up
her orders. She had a tendency, according to Brooks, to
excessively engage in conversations with customers and he,
Brooks, overheard some of those conversations and was
informed by other employees concerning certain other as-
serted remarks made by Janeway to customers.
Nast testified that more than once Randy Brooks in-
formed him of Janeway's alleged tendency to converse ex-
cessively with customers, and Brooks also told Nast she
repeatedly spoke to employees about alleged overcharges
on the part of the Company for insurance coverage. Nast
further testified that he was informed by Randy Brooks
that Janeway had spoken both to other employees and to
customers about her "overtime pay."
Respondent proffered testimony to the effect that at var-
ious times during the term of her employment Janeway had
raised issues concerning the Company's asserted failure to
properly credit her with overtime work and the alleged pol-
icy to overcharge for insurance coverage. Additionally. the
record establishes, as found, Janeway requested Nast to
compensate her for a hairpiece which she purchased at the
instructions of H. T. Brooks.
Conclusions
A. Interference. Restraint, and Coercion
I find that Respondent violated Section 8(a)( I) and (3)
of the Act. as alleged in the amended complaint.
895
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the outset, it is essential to conclude the Union's
organizing effort on behalf of the employees at
Respondent's Porterville facility was, in a sense, a van-
guard effort on behalf of an employee segment of a dy-
namic and growing enterprise with many separate facil-
ities; none of which had ever been organized by any labor
organization. The record establishes that principal authori-
ty over the operations of the enterprise resided with H. T.
Brooks and Thomas Nast, with Brooks having the more
intimate day-to-day involvement in the operational aspects
of the coffeeshop and restaurant chain. The record estab-
lishes also that Brooks and Nast opposed unionizing of the
chain and sought to foreclose a successful effort by the
Union at the Porterville facility. A careful analysis of the
record evidence convinces me the opposition of Brooks
and Nast to the concept of an organized employee segment
at Porterville led them to adopt counter techniques which
exceeded the permissible limits of Section 8(c) of the Act
and which intruded markedly into the protected area of
employee activities defined by Section 7 of the Act.
While the approach of Nast was low-keyed, the conduct
of Brooks in seeking to counter prounion manifestations of
his employees at Porterville was neither subtle nor well dis-
guised. Brooks' approach may have been attributable in
small measure to his lack of sophistication in labor rela-
tions matters, but this trier of fact is compelled by the rec-
ord to conclude that, in point of fact, Brooks' verbal forays
defining his open opposition to a unionized facility were
intentionally open, direct, and abrasive with the object of
maximizing their tactical effect. In this connection, his
statements of opposition communicated both to supervi-
sion and management alike were sufficiently frequent to
disclose not only a fixed attitude of opposition to union
representation for his employees, but to define the parame-
ters of a carefully coordinated campaign to diffuse the or-
ganizing effort, and to fine-tune the eventual exodus from
employment of the leading employee proponents thereof.
Thus, conduct and statements, which in a different context
and on a different record would be, at first blush, discount-
able on credibility grounds as unlikely to emanate from a
responsible manager, take on a persuasive hue and require
acceptance and credence when attributable to the prime
mover of the instant Company, H. T. Brooks. In short. I
find merit in the contention of the General Counsel that
the utterances of Brooks to or in the presence of rank-and-
file employees over a span of 5 weeks, during the height of
the Union's organizing efforts, were impermissible within
the meaning of Section 8(a)(1) of the Act.
Chronologically the initial intrusion by Brooks, into the
protected area accorded employees by Section 7 of the Act
to freely select a collective-bargaining agent, transpired at
the Porterville facility during the course of a conversation
between Brooks and Padilla overheard by Janeway. As
found, Brooks, in substance, in speaking with Padilla, in-
cluded Smoot and Janeway in the group of "older" wait-
resses "probably" causing the union difficulties in the
store. The evidence establishes to my satisfaction, as con-
tended by the General Counsel, that Janeway overheard
these comments as well as the instructions Brooks issued to
Padilla to hire younger waitresses and to accomplish a cut-
back in the hours of work for both Smoot and Janeway.
These statements heard by Janeway clearly were calculated
to have an inhibiting effect upon Janeway in exercising her
right to seek collective representation for herself and other
employees at the Porterville store. The comments in ques-
tion constituted impermissible threats and created in the
mind of Janeway the concept Brooks was engaging in sur-
veillance of the union activities of his employees. Hendel
Manufacturing Company, Incorporated, 197 NLRB 1093
(1972); Marland One-Way Clutch Co., Inc., 200 NLRB 316
(1972).
Closely related to the foregoing, both in time and in the
character of the intrusion of Brooks into the privileged area
accorded employees by Section 7 of the Act, is Brooks'
comment to Janeway on April 22, or thereabouts, when
Janeway called Brooks by telephone to inquire about the
reduction in her hours. As found, Brooks, in substance,
declared that the reduction was but a concomitant conse-
quence of Janeway's involvement in the Union. The Gen-
eral Counsel correctly defines this statement as a violation
of Section 8 (a)(1) of the Act. Celotto, Inc. d/b/a Dreamland
Bedding, 221 NLRB 1082, 1085 (1975).
In further chronological sequence, Brooks, during the
course of the same conversation with Janeway, unlawfully
interrogated Janeway concerning her card-signing activi-
ties in support of the Union. Brooks issued a clear threat of
plant closure by declaring his own personal determination
to convert the Porterville facility into an office complex,
rather than permit the Union to organize the Porterville
employees. Falcon Tank Corp., 194 NLRB 333 (1971);
Swain Manufacturing Company, 201 NLRB 681, 684 (1975).
As the record discloses, and as is disclosed by the evi-
dentiary findings above made, conduct impermissible un-
der Section 8(a)(1) of the Act was not limited to H. T.
Brooks alone, but was perpetrated also by Randy Brooks,
the son of H. T. Brooks, and by Thomas Nast.
Thus, within 10 days of being subjected to unlawful in-
terrogation and threats by H. T. Brooks, Janeway was
again the recipient of an implicit threat to her economic
well-being when she was informed by Randy Brooks, dur-
ing the course of a conversation between Janeway, Padilla,
and Brooks, the Porterville facility would be closed if the
union efforts succeeded. This threat, closely tied to an ac-
companying request that Janeway and Padilla use their
standing among the employees to assist the Company in
countering the organizing effort of the Union, was clearly
impermissible under Section 8(a)(1) of the Act. The impli-
cation of reward to flow from any successful effort by
Janeway and/or Padilla adds to the gravity of Randy
Brooks' unlawful solicitation. Allou Distributors, Inc., 201
NLRB 47, 52 (1973); JFB Manufacturing, Inc., 208 NLRB
2, 6 (1973); Swain Manufacturing Company, supra.
Further, as contended by the General Counsel, Randy
Brooks unlawfully interrogated Janeway on May 4, during
the course of a conversation in his office, when he ques-
tioned her about her card-signing activities.
Perhaps the most telling assault by management upon
the freedoms accorded its employees to organize tran-
spired during the course of the May 5 meeting presided
over by Nast and held at the Porterville facility. The asser-
tion by Nast to the assembled employee group to the effect
that employes had been in contact with the Union and that
896
PERKO'S INC.
the Company had a right to know what had been stated to
employees by the representatives of the Union was clearly
impermissible when joined with a technique of polling em-
ployees by a raise of hands on the series of questions relat-
ing to employee contact with the Union and involvement
of employees in union activities on company time. This
conduct on the part of Nast constituted unlawful interro-
gation and polling of employees and created the impres-
sion that their union activities were under surveillance by
management. See Murcole, Inc.. 204 NLRB 228, 234-235
(1973); Fredeman's Calcasieu Locks Shipyard, Inc., 206
NLRB 399 (1973). See also Struksnes Construction Co. 165
NLRB 1062 (1967). The unlawful nature of the statements
and conduct of Nast was not changed by the fact that they
were preceded by a permissible 8(c) speech by Nast and
by oblique assurances to employees that the show of hands
would result in no reprisals. Crow Inc., 206 NLRB 439, 443
(1973).
The evidence compels the further conclusion that H. T.
Brooks again returned to his verbal assault upon employee
efforts to organize the Porterville store when, on May 19,
during the course of his conversation with Smoot, he ex-
pressed his unwillingness to permit his restaurant operation
to be unionized and his related preference to convert the
Porterville facility into an office building or to sell it out-
right.36 As found, these statements were accompanied by
references which would compel Smoot to conclude that her
employment at Porterville would be ceased if Brooks car-
ried out his unlawful threat. The threat took on added sig-
nificance because of its juxtaposition to the suggestion of
Smoot the matter of union representation be settled by an
election. See Mike O'Connor Chevrolet-Buick-GMC Co.,
Inc., et al. 209 NLRB 701 (1974). The entire interlude as-
sumed a more aggravated character when Brooks retorted
he could cut Smoot's hours entirely as a reaction to her
involvement in the union effort. As the General Counsel
correctly contends, the statement connoted a willingness
on the part of Brooks to terminate Smoot rather than coun-
tenance her involvement with the Union. See Loggins Meat
Co., supra.
The coordinated nature of Respondent's unyielding ef-
fort to defeat the organizing effort of the Union is dis-
played by Ivars Lusis' interrogation of McMurrey as to
whether he had signed a union card and the May 22 state-
ments of Lusis to Smoot who was inquiring into the recent
termination of Padilla. The evidentiary findings, herein
made, compel the conclusion, as contended by the General
Counsel, that in informing Smoot that her termination
might transpire with unexpected haste Lusis unlawfully
threatened Smoot in violation of Section 8(a)( I) of the Act.
This is so because, in speaking with Smoot, Lusis had con-
ceded that management had been harassing Smoot in order
to get her to resign her employment, and he accompanied
his prediction by a further advisory to the effect that in the
face of the problems being encountered with the employ-
ees, management might revise its plans to partially remodel
3' On the same day, Brooks expressed this same sentiment to Ernest Pa-
dilla who had returned to a rank-and-file position as lead cook. The General
Counsel does not allege this as a violation of Sec 8(a(1 ), and I make no
finding to that effect.
the Porterville facility by opting to close down entirely for
a significant period in order to completely remodel. I find,
in agreement with the General Counsel, this latter state-
ment by a supervisor and managing agent constituted an
unlawful threat of adverse economic consequences to flow
from continued union activity.
B. The U'nlawful Discrimination
I. Summary conclusions
In further agreement with the General Counsel, I find
Respondent violated the Act by accomplishing a reduction
in the scheduled hours of work of Janeway and Smoot; by
terminating Janeway and Ernest Padilla and by causing
the constructive discharge of Smoot. The opposition of Re-
spondent to the unionizing of its Porterville facility is clear-
ly established, and the willingness of management to
trench upon protections accorded employees by the Act in
order to give efficacious effect to its antiunion policies is
indelibly revealed by 8(a)(1 violations found above. The
record evidence, carefully analyzed, provides ample basis
for the finding here made that management was fully con-
vinced of the involvement of Janeway and Smoot in the
advocacy of collective representation at the time it under-
took to reduce and reschedule their hours of work and to
otherwise secure their voluntary severance through a pro-
cess of harassment. Similarly, there can be no valid chal-
lenge to the implicit contention of the General Counsel
that Padilla's exodus from the work force occurred at a
time when H. T. Brooks and Thomas Nast had learned of
his association with, and ideological affinity to, Janeway's
advocacy of the Union.
2. The unlawful schedule adjustments
It would unduly burden this decision to recount the fac-
tual findings supporting the conclusion, which I reach, that
H. T. Brooks issued the operative directives designed to
foster the disenchantment and the eventual resignation of
Janeway and Smoot. He did this, I find, by mandating a
negative or adverse adjustment in their work schedule and
by badgering them to comply with the letter of minor work
rules pertaining to the wearing of hairpieces and on-duty
smoking. In this regard. the credited record evidence estab-
lishes Brooks confided to supervision and management the
union-related basis for his instructions, thus compelling re-
jection of Respondent's contention that the rules were fair-
ly applied and enforced against all employees as part of a
"new broom" approach to regenerate the quality of opera-
tion at Porterville. Specifically, with respect to the modifi-
cation in the working schedule of Janeway and Smoot,
Brooks instructed Padilla to cut the hours of employees
whom he identified by name and whom he suspected of
supporting the Union, and he candidly conceded to Jane-
way and Smoot the connection between the scheduled
changes and their own involvement with the Union. In the
face of ample evidence of Brooks' personal opposition to
the Union. and the resultant harassment of Janeway and
Smoot both contemporaneous and subsequent to the work
schedule changes, the economic explanations proffered by
897
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent in support of the schedule modification will
not stand scrutiny. In this regard, Respondent does not
challenge the proficiency or efficiency of either Janeway or
Smoot. Yet, only Janeway and Smoot, among the day wait-
resses, were subjected to a switch of working days and a
significant reduction in their scheduled hours. Moreover,
Respondent's own records contain data suggesting a high
degree of sophistry in the foundational contention the
hours of Janeway and Smoot prior to the schedule modifi-
cation were excessive when measured against industry
norms and against optimum labor percentage criteria. In
point of fact, there is little support in the record for the
notion that a more favorable labor percentage was
achieved by the reduction in the hours of work of either
Janeway or Smoot, and, as contended by the General
Counsel, there is persuasive data to support the conclusion
subsequent to the expulsion of Janeway and Smoot from
the work force, that other waitresses maintained a work
schedule as intense as that which Respondent asserts was
inappropriate managerially and operationally for Janeway
and Smoot. But such an assessment is essentially superflu-
ous for if some elements of economic justification for im-
plementing the schedule changes are assumed, the conclu-
sion compelled by the record evidence is that the schedule
modifications were primarily effectuated to harass Jane-
way and Smoot by visiting adverse economic and personal
consequences upon them with the object of causing them
either to abandon their leadership effort in the union un-
dertaking or to accomplish their resignation from the work
force.
3. The constructive discharge of Smoot
Most closely identified analytically with a "successful"
fruition of Respondent's scheme is the separation of Rena
Smoot.
The General Counsel is quite correct in the contention
that, in the days immediately preceding Smoot's resigna-
tion, she was subjected to renewed schedule modifications
calculated to reduce her income and to work personal
hardships upon her. It is not sufficient on the record before
me to contend, as Respondent inferentially does, that
Smoot merely experienced the inconveniences normally to
be expected in the employment relationship arising from
operational changes calculated to improve efficiency and
profits. Rather, the credited evidence establishes that
Smoot's scheduled hours were reduced and she was forced
to work on Sunday as an integral element of a plan ad-
vanced by top management through supervision to encour-
age Smoot's voluntary resignation. It is also clear from sub-
stantial evidence of record that Smoot's resignation was
desired not because of any lack of proficiency on her part
as a waitress, but solely because she had been, and was
continuing to be, instrumental in furthering the organizing
efforts of the employees. Thus, management was fully
aware of Smoot's union activities, and the new Porterville
manager, Lusis, drafted the schedule changes affecting
Smoot in direct response to the inducements of Randy
Brooks. The record compels the conclusion the scheduling
of Smoot for Sunday work was especially onerous because
of her family responsibilities, and management fully appre-
ciated the negative impact flowing from this action. Addi-
tionally, it is essential to conclude management fully antic-
ipated the schedule change would have a "last straw" ef-
fect, for in the days which had preceded the schedule
modification, not only had Smoot been the recipient of a
threat to her job tenure at the hands of the principal owner
of the enterprise, H. T. Brooks, but she had been subjected
to petty verbal harassment concerning her hair style, even
though Lusis, the principal conduit of Brooks' criticism of
Slasoot's hair length, considered it fully acceptable under
industry norms and clearly suspected Brooks' motives in
hounding Smoot.37 Moreover, in the preceding 3 weeks
Smoot had seen Janeway and Padilla leave the Company
under circumstances suggesting to her a causal relationship
between their espousal of the Union and their loss of em-
ployment. Clearly, given the context of the described
events, including the termination of her compatriots; the
threat uttered to her by Brooks on May 19; the reduction
in her work hours and adverse adjustment in her scheduled
days of work; and the petty harassment concerning her
hair, it was reasonable for Smoot to have assumed that her
work environment and income would continue to erode
because of her past involvement with the Union. In a real
sense, viewed from Smoot's vantage point, she had no ac-
ceptable option short of acquiescence except resignation.
She chose the latter course. When compelled by exigencies
supplied by the employer, a severance under the described
circumstances becomes unlawful and is viewed as a con-
structive discharge violative of Section 8(a)(1) and (3) of
the Act. Pre-Cast Mfg. Co., 200 NLRB 135 (1972).38
4. The termination of Janeway
Similarly violative of the Act was the termination of
Janeway following her refusal on May 4 to continue to
engage in a telephone conversation with Thomas Nast. I
find no merit in Respondent's contention that Janeway
was terminated for cause.
In evaluating the validity of the General Counsel's aver-
ral that Janeway's termination was unlawful, scrutiny must
be given to the precise circumstances in which her sever-
ance was effectuated. It is to be remembered that Janeway
was a principal proponent of the Union at the Porterville
facility, and she had been identified by management as
such. Moreover, as found, H. T. Brooks had initiated a
program of harassment designed to secure Janeway's resig-
nation or her abandonment of her support of the Union.
Further, she had been bluntly informed by H. T. Brooks
that a nexus existed between her involvement in the union
cause and the reduction in her scheduled hours of work,
and she was threatened with economic hardship to follow,
7 Smoot may well have viewed Lusis' order to cease bringing her hus-
band to the restaurant prior to opening hours as a further element in the war
of nerves directed against her, but her assessment is misplaced because
Lusis was not acting in a disparate manner and there was sound basis for his
directive.
38 As the General Counsel correctly notes. Smoot's submission of her
resignation came as no surprise to Lusis who accomplished the schedule
changes and, for his part, Lusis received the congratulations of Nast when
he informed Nast of Smoot's decision to leave Respondent's employment.
This evidence is deemed to support the finding of a violation.
898
PERKO'S INC.
if the Union effort was successful. Finally, Randy Brooks
was acquainted on May 4 with the desire of his father,
H. T. Brooks, to force Janeway from the employment rolls
if she did not prescind from her advocacy of the Union.
The crucial telephone conversation with Nast on May 4
had been preceded, to be certain, by a request initiated by
Janeway that her company insurance coverage be discon-
tinued. As noted by Respondent, the request was uttered in
the public area of the restaurant, but her request was ad-
vanced in conversational tones and she verbalized no dis-
paragement of the coverage available through the Compa-
ny, although she noted she had obtained alternate coverage
at more reasonable rates. Randy Brooks, who was the re-
cipient of the request, interpreted the request as open and
adverse criticism of the insurance program offered by the
Company, although Brooks' mental interpolations, more
than the literal content of Janeway's request, served as the
basis for Brooks' interpretation. Because of his sensitivity
to the insurance matter, with its obvious symbolic and lit-
eral association to the larger question of employee benefits.
Brooks associated Janeway's request to terminate her com-
pany insurance coverage with a generic, underlying dissat-
isfaction on Janeway's part with working conditions, which
had manifested itself in Janeway's advocacy of a union;
and Brooks interrogated Janeway about her card signing
and union activities.
It is significant, in my view of the record, that in contact-
ing Nast by telephone on May 4 and thereby initiating the
exchange between Janeway and Nast which led to
Janeway's termination, Brooks misrepresented to Nast the
nature of Janeway's actual remarks earlier made in the
public area of the restaurant, distorting them by incorrectly
asserting Janeway had publicly disparaged the Company.
This distortion resulted, I find, partially as a result of the
knee-jerk mental process described above, and partially
from a realization on the part of Randy Brooks that by
casting his report to Nast in the negative tones and shad-
ings enumerated, Janeway's hold on her job would be di-
minished, in furtherance of the enunciated objective of
H. T. Brooks." It was, then, in context of Brooks' basical-
ly inaccurate description of Janeway's conduct and com-
ments in the restaurant that the truncated dialogue be-
tween Janeway and Nast transpired.
It is, of course, true that when she was handed the tele-
phone by Brooks and heard the amplification of the voices
over Nast's speaker telephone at the other end, Janeway
refused to converse with Nast on the instrument which he
was then using. It is further true Janeway was intemperate
in her refusal, but her reluctance was not entirely unrea-
sonable, for Nast conceded testimonially that others had
commented about the voice distortions caused by his
speaker phone. Nevertheless, Nast treated Janeway's refus-
al to converse with him as a provocation sufficient to war-
rant her summary termination. He did not remonstrate
with her. He did not warn her of the consequences of her
refusal. He gave her no second chance. He summarily or-
39 Randy Brooks' subsequent protestations of regret over Janeway's ter-
minations were undoubtedly guilt-ridden but, the record shows Rands
Brooks was an obedient, if somewhat reluctant, minion in carrying out the
dictates of top management comprised of H. T Brooks and Thomas Nast.
dered her termination. In all the circumstances, even as-
suming an element of discourtesy and disdain in Janeway's
remarks sufficient to constitute insubordination, the evi-
dence memorialized by the instant record compels rejec-
tion of the notion Nast was motivated solely by nondis-
criminatory considerations in terminating Janeway.4
Rather, the record evidence requires the conclusion, which
I reach, that Nast saw in Janeway's declination an oppor-
tunity for accomplishing Janeway's termination on color-
ably legitimate grounds, thus fulfilling the objectives of
management to control union advocacy by expunging it
through "resignations" or submission.
The record contains insufficient evidence to support the
assertion of Respondent the information in Nast's posses-
sion, concerning grievances which Janeway had expressed
to supervision and management pertaining to work-related
matters, contributed in any significant respect to Nast's
decision to terminate Janeway. The time available to Nast
to accomplish a careful evaluation of Janeway's personnel
file assertedly containing a documentation of Janeway's
grievances against the Company was, by any reasonable
interpretation of Nast's own testimony, too brief to have
permitted anything more than a cursory glance at its con-
tents and a related correlation of that material with other
information subject to Nast's immediate recall. Rather, the
record suggests, far from being a reasoned response based
on an evenhanded evaluation of Janeway's merits as an
employee, Nast's actions were calculated and opportunis-
tic, generated by hostility towards Janeway because of her
leadership in espousing the Union. Notably, the deep an-
tipathy of top management towards Janeway found expres-
sion in the conduct of H. T. Brooks even after her termina-
tion, as witness the otherwise inexplicable behavior of
H. T. Brooks towards Janeway on the night of May 22
when she visited the restaurant as a customer to partake of
the prime rib special.
In sum, I find the principal motivation of Nast's decision
to terminate Janeway was Janeway's involvement in seek-
ing to obtain union representation for the employees at the
Porterville facility. Given the presence of discriminatory
motivation, on the part of Nast who accomplished the ter-
mination, it is of no decisional consequence there existed
sufficient grounds otherwise justifying Nast's action. I con-
clude and find Janeway's termination violated Section
8(a)(3) and (1) of the Act. 41
5. The termination of Ernest Padilla
I also find that Respondent terminated Ernest Padilla
because of his affinity to Janeway's advocacy of collective
representation and his own role on behalf of the Union.
". The General Counsel notes that Janeway was in an off-duty status
when she conversed with Nast and was acting out of sufferance and not
duty in speaking with Nast This is doubtless so, but arguendo off-duty
insubordination mas well form a sufficient basis for termination, absent
antiunion considerations
41 That Janeway sought alternative relief by filing a charge with the Equal
Employment Opportunity Commission does not alter the matter It is suffi-
cient that the allegations of the complaint with respect to Janeway's termi-
nation were supported hb the preponderance of the credible evidence In
ans event. the EEOC charge was not mutually exclusive with the redress
sought by the auspices of the Board
899
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the evidence establishes, the events which led to the
termination of Padilla were telescoped within a time frame
of less than 3 weeks. On May 10 Padilla resigned his posi-
tion as acting assistant manager and returned to the rank-
and-file responsibility as lead cook. He accomplished his
resignation by a statement of his unwillingness to continue
to "manipulate" the employees in order to assist the Com-
pany in countering the Union. Padilla declared his refusal
to Randy Brooks, and in explanation for his decision stat-
ed also that he suspected Janeway's termination had result-
ed from her involvement with the Union. This statement
was but a reiteration of a state of mind which he had dis-
closed in an open meeting on May 5 in the presence of
Nast and Randy Brooks. Then, just 3 days prior to the
events which led directly to Padilla's severance, Padilla
was identified by Randy Brooks as one of the employees
who was sympathetic to the Union. It is significant the
declaration of Padilla's status came during the course of a
conversation between Randy Brooks and Ivars Lusis, who
had been newly designated as the manager of the Por-
terville facility. There is no basis for assuming Randy
Brooks was merely articulating his own suspicions, or that
top management was indifferent to Padilla's support of the
union cause. On the other hand, it is not significant that
management had not acted earlier to purge Padilla from
the work force. He had accorded no pretext for severance
action, and there is basis enough in the record for inferring
that prior to the May 22 incident management had har-
bored hopes of Padilla's "redemption" and was biding its
time in the event he did not recant. Suffice to find, as I do,
there existed a significant degree of disapproval and ani-
mus on the part of Respondent's management, including
H. T. Brooks, towards Padilla when, on the evening of
May 22, Padilla made an appearance at the Porterville fa-
cility for the purpose of dining as a customer of the restau-
rant together with Ruby Louise Janeway and Janeway's
son. As I view the record evidence, only the presence of
deep and overriding hostility on the part of H. T. Brooks
towards Janeway could have motivated Brooks to have
acted to her in the manner in which he did. In a related
context, only a smoldering resentment fanned by Padilla's
May 22 display of unity with Janeway would serve to ex-
plain the ultimatum issued by Brooks to Padilla concerning
the lack of wisdom in terms of continued progress with the
Company of Padilla's continued association with Janeway.
It is clear that in warning Padilla concerning his associa-
tions with Janeway, Brooks was concerned with Janeway's
activist propensities; he was not proffering an abstract
commentary on Padilla's social life. Again, nothing in
Padilla's behavior on the night of May 22 prior to his de-
parture from the restaurant had given Brooks a rational
ground for accomplishing Padilla's summary termination,
a fact which Brooks recognized when he abstained from
formally declaring Padilla's severance. It is, then, an accurate
measure of the hostilities which Brooks harbored towards
Padilla because of his identity with the union cause and its
principal proponents that he so readily seized upon Padilla's
ambiguous declaration of his employment intention by set-
ting in motion the operative instruction sufficient to accom-
plish Padilla's severance.
Again, as I view the record, nothing transpired during
the course of the incident in the restaurant on the evening
of May 22, as would have justified so ready an acceptance
of Padilla's asserted proffer of a resignation. Certainly if
objective evaluation of Padilla's conduct had governed
Brooks' decision the following day, on May 23, when Pa-
dilla reported for work ready to assume his duties, Brooks
would have acted with greater compassion towards Padilla
than he displayed. Instead, he acted with anger and leveled
charges which served merely to emphasize his own preoc-
cupation with Padilla's association with Janeway, the
union activist.
The record evidence requires the conclusion that
Padilla's termination was caused in principal part because
of his demonstrated affinity towards the union cause and
those who had advanced that cause among the employee
group at Porterville. I find the explanation advanced by
Respondent as to Padilla's termination was pretextual, and
his discharge violated Section 8(a)(1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent, as set forth in section I11,
above, occurring in connection with the operations of Re-
spondent, described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has committed certain
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act, it will be recommended that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
The parties having stipulated and agreed that Perko En-
terprises, Inc., is a legal successor to Respondent, and the
parties having further stipulated that Perko Enterprises,
Inc., would be bound by any remedial order which might
ultimately issue in these proceedings, it is hereby specifical-
ly found that Perko Enterprises, Inc., together with Re-
spondent Perko's, Inc., are and shall be jointly and sev-
erally bound by the provisions of the remedial order
herein.
Having found that Respondent discriminatorily termi-
nated the employment of Ruby Louise Janeway, Ernest Pa-
dilla, and Rena Smoot because they engaged in union or
other protected concerted activities, and having further
found that for the same reason, Respondent unlawfully re-
duced the hours of work of Janeway and Smoot, all in
violation of Section 8(a)(3) and (1) of the Act, I shall rec-
ommend that Respondent offer Janeway, Padilla, and
Smoot immediate and full reinstatement to their former
positions of employment, or if said positions are no longer
available, to substantially equivalent positions, without
41 Although the record suggests that a form "reinstatement" was offered
to Padilla by Respondent which he declined to accept, said offer of rein-
statement was not unconditional in nature and did not serve to eradicate or
terminate the reinstatement obligation of Respondent with respect to Ernest
Padilla.
900
PERKO'S INC.
prejudice to any seniority or other rights and privileges to
which said discriminatees may be entitled.42 I shall also
recommend that Respondent make whole Janeway. Padil-
la, and Smoot for any loss of earnings they may have suf-
fered by reason of the discrimination against them. Back-
pay shall be computed in the manner prescribed in F. W
Woolworth Company, 90 NLRB 289 (1950). together with
interest thereon in accordance with the policy of the Board.
set forth in Florida Steel Corporation, 231 NLRB 651
(1977).43
Because the violations of Section 8(a)(3) and (1) of the
Act perpetrated by Respondent go to the heart of the Act.
a broad cease-and-desist order shall be recommended.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this proceeding, I make the fol-
lowing:
CONC.LUSIONS OF LAW
1. Perko's, Inc., and Perko Enterprises, Inc., are em-
ployers engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Culinary, Cooks, Bartenders and Hotel, Motel. Ser-
vice Employees Union, Local 62, Hotel and Restaurant
Employees and Bartenders International Union. AFI
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. Perko Enterprises, Inc., is a legal successor to Perko's.
Inc., and is jointly and severally, together with Perko's, Inc.,
subject to the terms of the remedial order herein.
4. By interrogating employees concerning their union
activities; by polling employees concerning their senti-
ments concerning the Union, and/or their involvement in
union activities; by threatening employees with cessation
of business or closure of the Porterville restaurant facility
for the purpose of discouraging their involvement in union
activities; by creating the impression that the union and
protected concerted activities of employees were under sur-
veillance by supervision and management; by reducing the
scheduled hours of work of employees in order to discour-
age support for the Union and involvement in union or
protected concerted activities; and by threatening employ-
ees with termination in the event they continued to engage
in union or protected concerted activities, Respondent en-
gaged in conduct in violation of Section 8(a)( l) of the Act.
5. By terminating the employment of Ruby Louise Jane-
way and Ernest Padilla. and by constructively discharging
Rena Smoot, all because they engaged in protected con-
certed activities in support of the Union, Respondent en-
gaged in conduct in violation of Section 8(a)(3) and ( I) of
the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
43 See, generally, Isis Plumhing & Iteuing (-,.. 138 N RB 716 ( 1962
ORDER 44
The Respondent, Perko's, Inc.. Porterville. California,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Culinary. Cooks, Bar-
tenders and Hotel. Motel. Service Employees Union, Local
62. Hotel and Restaurant Emplosees and Bartenders Inter-
national Union, AFL C10, or any other labor organiza-
tion, by unlawfully terminating the employment of its em-
ployees. or by causing the constructive discharge of any
employee, or by discriminating in any other manner with
respect to the hire or tenure of employment or term or
condition of employment of any employee in violation of
Section 8(a)(3) of the Act.
(b) Interrogating employees concerning their union ac-
tivities; polling employees concerning their sentiments con-
cerning the Union, or their involvement in union activities:
threatening employees with cessation of business or closure
of the Porterville restaurant facility for the purpose of dis-
couraging their involvement in union activities: creating
the impression that the union and protected concerted ac-
tivities of employees were under surveillance by supervi-
sion and management: reducing the scheduled hours of
work of employees in order to discourage support for the
Union and involvement in union or protected concerted
activities: and threatening employees with termination in
the event they continued to engage in union or protected
concerted activities.
(c) In any other manner interfering with, restraining, or
coercing an' employee in the exercise of the right to en-
gage in self-organization, to bargain collectively through
representatives of their own choosing or to act together for
collective bargaining or mutual aid or protection. or to
refrain from an,: or all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Make Rubs Louise Janeway. Ernest Padilla, and
Rena Smoot whole for any loss of wages which they) may
have suffered by reason of the discrimination against them,
in accordance with the recommendation set forth in the
section of this Decision entitled. "The Remedy."
(b) Preserve and, upon request. make available to the
Board, or its agents, for examination and copying, all pay-
roll records, social security payment records. timecards,
personnel records and reports, and all other records neces-
sar' to analyze the amount of backpay due under this rec-
ommended Order.
(c) Post at its Porterville. California, restaurant and cof-
feeshop, copies of the attached notice marked "Appen-
dix. " 45 Copies of said notice, on forms provided by the
Regional Director for Region 32, after being duly signed
4 In the esent no exceptlim ;ire filed a, pro, idedl hb Sec 102 46 of the
Rules and Reguliarons of Ihe Naton.l I .Ihtr Relations Board. ihe finding.l
conclusions, and recommended Order herein shall. .t ploided in Sc,
10248 of the Rules and Regulalons. he. aIdpled hi Ihe Boa.lr d 1 beomelll
Its findings. conclus.Ins. and ( rder. and .ll ibjec.iiinn Iheret, h a.ll he deemn ed
waived for all purposes
~ In Ihe esenrt that Ihe Boird , Order is enf.orced h, in Judgmenl of a
t n!lied Salte ( i irl if Appe, sl the isords In the iltlce re.adillu Pusted h,
O)rder of the N.ltional i .ihor Reliatlion Boaird" hall read "Potcd Pursuant
( ' in unlied
901
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent's representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
to a Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board."
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to ensure said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director of the National Labor
Relations Board for Region 32, in writing, within 20 days
of the date of this Order, what steps Respondent has taken
to comply herewith.
902