Pickle Bill's, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1976

224 N.L.R.B. 413 (N.L.R.B. 1976)

PICKLE BILL'S, INC 413
Pickle Bill's, Inc and Hotel, Motel, Restaurant Em-
ployees and Bartenders Union Local No 10, AFL-
CIO Case 8-CA-9453
June 7, 1976
DECISION AND ORDER
By MEMBERS FANNING, PENELLO, AND WALTHER
On January 28, 1976, Administrative Law Judge
Joel A Harmatz issued the attached Decision in this
proceeding Thereafter, General Counsel filed excep-
tions and a supporting 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 brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order 2
made between violations of Section 8(a)(4) and other
sections of the Act Children's Baptist Home of South-
ern California, 215 NLRB 303 (1974)
It is questionable whether we remedy the 8(a)(4)
violation here or merely provide a remedy for the
manner in which that section was violated The Re-
spondent is required to reinstate employees it dis-
charged in violation of Section 8(a)(4), but those dis-
charges were only incidental to its unlawful
objective-to prevent employees from invoking the
Board's processes That objective, unaffected by the
Remedy and Order, is secured for the Respondent by
the decision to exercise only partial jurisdiction
The Respondent, once having exceeded the limits
of our discretionary tolerance, should not be allowed
refuge behind standards which are justifiable only as
a means of better effectuating the purpose of the Act
in protecting the rights of employees I would find
that the Respondent violated Section 8(a)(1) and (3)
as well as Section 8(a)(4) Similarly, I would assert
jurisdiction in the representation case now pending
DECISION
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Pickle Bill's, Inc, Cleve-
land, Ohio, its officers, agents, successors, and as-
signs, shall take the action set forth in the Adminis-
trative Law Judge's recommended Order
MEMBER FANNING, concurring and dissenting in part
I agree that the Respondent has violated Section
8(a)(4) of the Act and that the majority properly as-
serts jurisdiction to that extent despite our discretion-
ary jurisdictional standards However, as I indicated
in my dissenting opinion in Robert Scrivener d/b/a
A A Electric Co, 177 NLRB 504 (1969), once we
have reached beyond our discretionary standards, we
should assert our jurisdiction to the fullest Nor am I
alone in questioning the validity of the distinction
The General Counsel incorrectly states that the Boards decision in
Children 's Baptist Home of Southern California 215 NLRB 303 ( 1974), over-
ruled Robert Scrivener d/b/a A A Electric Co 177 NLRB 504 (1969)
which involved the protection of Board processes as does the present case
As the Administrative Law Judge correctly stated , Children 's Baptist did not
involve the question of protecting Board processes , but stands for the prop-
osition that the Board will assert jurisdiction with respect to unfair labor
practices committed by an employer while covered by our jurisdictional
standards , even though those standards are subsequently modified in other
cases which , if applied to this Employer , would remove him from our stan-
dards Thus, in Children 's Baptist we carefully limited any reversal of Scri
vener to the facts presented in Children s Baptist
2 No exceptions were filed by the Respondent
STATEMENT OF THE CASE
JOEL A HARMATZ, Administrative Law Judge This case
was heard in Cleveland, Ohio, on December 16, 1975, upon
a charge filed on September 15, 1975, and a complaint
issued on October 30, 1975, alleging that Respondent inde-
pendently violated Section 8(a)(1) of the Act by threaten-
ing to withdraw employment privileges if employees desig-
nated a union as their representative, by requesting
employees to publicly express their preferences on union
representation, and by coercively interrogating employees,
and further violated Section 8(a)(1), (3), and (4) of the Act
by discharging employees Irene Minko and Linda Clingan
because of their union activities and/or because they gave
testimony under the Act In its duly filed answer, Respon-
dent denied that any unfair labor practices were commit-
ted After close of the hearing, briefs were filed by the
General Counsel and the Respondent
Upon the entire record in this case, including my obser-
vation of the witnesses while testifying and their demeanor,
and upon consideration of the posthearing briefs, I hereby
make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation with a place of busi-
ness located in Cleveland, Ohio, from which it is engaged
in the operation of a restaurant During the calendar year
1974, a representative period, Respondent derived gross
revenues from said retail operation in an amount exceeding
$224,000, and received seafood products directly from
points outside the State of Ohio, in excess of $500, while
224 NLRB No 53
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purchasing liquor valued in excess of $9,000 from the State
of Ohio, of which in excess of $4,500 was received by the
State of Ohio directly from distilleries located outside the
State of Ohio Also in connection with said operation, dur-
ing 1974, Respondent contracted for and received the serv-
ices of various nationally known entertainers, for which
they were paid in excess of $4,000, which entertainers are
domiciled in States other than the State of Ohio
Respondent contends that the instant complaint should
be dismissed on jurisdictional grounds, inasmuch as the
foregoing commerce facts fail to meet the Board's self-im-
posed jurisdictional standard for retail enterprises There is
no dispute, and I find, that Respondent does not meet the
Board's discretionary standard relevant to the business op-
erations involved here l On the other hand, the volume of
annual purchases of goods and services by Respondent,
having an interstate origin, is of greater than de mmimis
amount, and suffices to evidence an impact upon and an
effect on interstate commerce to bring Respondent's opera-
tions within the authority conferred by Congress upon the
Board under this Act Thus, while the Respondent is within
reach of the Act insofar as the Board's statutory authority
is concerned, the Board has exercised its discretion pur-
suant to Section 10(c) of the Act so as to, in effect, place
Respondent within that class of employers over which the
Board will not normally assert jurisdiction
Nonetheless, the General Counsel argues that since legal
jurisdiction is established in this case "Public policy re-
quires the Board to assert jurisdiction for the purpose of
remedying the Respondent's unlawful interference with the
statutory right of all employees freely to resort to and par-
ticipate in the Board's processes " Robert Scrivener, d/b/a
A A Electric Co, 177 NLRB 504 (1969) 2
On authority of Scrivener, supra, I find in agreement with
the General Counsel, that the .,licies of the Act would be
effectuated by an assertion of jurisdiction, at least with
respect to the allegations that Irene Minko and Linda Clin-
gan were discharged for reasons proscribed by Section
8(a)(4) However, an entirely different issue is raised by the
claim that jurisdiction ought be asserted with respect to the
remaining allegations of independent 8(a)(1) and (3) viola-
tions, which on their face are collateral to any impairment
of Board processes on the Respondent's part
In Scrivener, supra, the Board, while entertaining the
8(a)(4) allegations against an employer who did not fall
within jurisdictional standards, declined to assert jurisdic-
tion over the "alleged independent and unrelated viola-
tions of Section 8(a)(1), (3) and (5) of the Act," electing
instead to adhere to established jurisdictional standards
with respect to such matters 3 Accordingly, the Board dis-
missed all allegations of the complaint on jurisdictional
grounds, other than that warranting consideration of
whether the employer unlawfully interfered with employee
access to Board processes
'See Carolina Supplies & Cement Co 122 NLRB 88 (1958)
2 Enforcement denied on other grounds at 435 F 2d 1296 (C A 8 1971)
3 Member Fanning, dissenting, would have asserted jurisdiction over
these allegations as well, stating "Once the Board asserts jurisdiction pub-
lic policy requires the fullest exercise thereof in order to protect employees
from any conduct which is unlawful under the Act 177 NLRB 504, 505
(1969)
Urging a disregard of the limited scope of the Board's
holding in that case, the General Counsel cites a subse-
quent decision, Children's Baptist Home of Southern Cali-
fornia, 215 NLRB 303 (1974), and apparently interprets
that case as modifying Scrivener's distinction between
8(a)(4) allegations and other alleged unfair labor practices
unrelated to the protection of Board processes As the
General Counsel correctly observes, in Children's Home,
the Board did in fact refer to the distinction made in Scri-
vener as of questionable validity However, in doing so, the
entire thrust of the of the Board's position was linked inex-
tricably to the factual situation with which it was confront-
ed in that case There, unlike Scrivener and indeed the in-
stant case, the employer committed the alleged unfair labor
practices at a time when the Board's discretionary standard
was satisfied by the employer's operations Indeed, pur-
suant to an RC petition that had been filed by the employ-
ees, the Regional Director had issued a direction of elec-
tion, asserting jurisdiction over the employer, prior to the
events which led to the filing of charges in that case How-
ever, by subsequent decision, the Board overruled prior
decisions, announcing that no longer would it assert juris-
diction over the type of institution involved in Children's
Baptist Home Thus, the question which arose on the facts
presented in Children's Baptist Home was whether the
Board, having assured employees that their union activities
would be protected, and the employees, having acted in
reliance on such assurances and engaged in union activi-
ties, could properly turn its back on them when victimized
by unfair labor practices "by declining to afford them the
protections of the Act which the Board led them to believe
they enjoyed " 215 NLRB 303 (1974) Answering this ques-
tion in the negative, the Board asserted jurisdiction In
doing so, it spoke to Scrivener, in the following terms
While we agree that in the Scrivener case, the Board
distinguished between alleged 8(a)(4) violations and
violations of other sections of the Act, we question the
validity of that distinction For, once the Board as-
sures employees that their union or concerted activi-
ties are protected by the Act, we feel it is highly ineq-
uitable to the employees who rely on such assurance
to their alleged detriment, thereafter to decline to pro-
tect them from an employer's alleged retaliatory ac-
tions Therefore, to the extent that our decision here
conflicts with Scrivener, the latter is reversed [Foot-
notes omitted ]
Contrary to the General Counsel, Children's Baptist
Home, cannot be construed as expanding the limited hold-
ing in Scrivener in broad-brushed fashion The former did
not involve the question of protecting Board processes, but
stands for the proposition that the Board will assert its
authority with respect to any and all unfair labor practices
committed by an employer while covered by published ju-
nsdictional standards, even though those standards are
subsequently modified, so as to remove the particular em-
ployer from the Board's discretionary jurisdiction Quite
plainly, in Children's Baptist Home, a majority of the Board
declined to endorse Member Fanning's dissenting position
PICKLE BILL'S, INC 415
in Scrivener 4 Nor does the Board articulate an intention,
beyond elimination of any inconsistency between the two
decisions , in other factual contests , of eliminating
Scrivener's distinction between allegations which must be
processed to protect Board procedures from unlawful in-
cursion and others bearing no relationship to employer ac-
cess to its procedures
From my reading of Children's Baptist Home, I am per-
suaded that the holding therein was tailored to the preser-
vation of employee equities, in cases where the Board itself
had extended prior assurance to the employees that statu-
tory protection was available
Accordingly, I find that as Respondent does not fall
within the appropriate jurisdictional standard that has
been in effect since 1958, Scrivener remains viable prece-
dent insofar as it dictates dismissal of the independent
8(a)(1) allegations and the 8 (a)(3) allegations in the instant
complaint which do not relate to employee freedom of ac-
cess to Board processes, which the Board guarantees as
against all employers within its lawful, statutory jurisdic-
tion
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer as amended at the
hearing admits, and I find that Hotel, Motel, Restaurant
Employees and Bartenders Union Local No 10, AFL-
CIO, herein referred to as the Union, is now, and has been
at all times material, a labor organization within the mean-
ing of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The Issue
With respect to the merits, the sole issue presented in this
proceeding is whether Linda Clingan and Irene Minko
were discharged because they gave testimony under the
Act in Case 8-RC-10045
B Background
Pickle Bill's is a restaurant which in the evening is oper-
ated as a supper club with live entertainment There are
about 25 employees, some 15 of whom are waitresses Clin-
gan and Minko, prior to their discharges, were full-time
waitresses Minko was the most senior of the full-time wait-
resses and Clingan was third in seniority among that group
Respondent's president, Jerry Powell, described Minko
and Clingan as "two of the best girls that I had "
Organizational activities on behalf of the Union began
among Respondent's employees in August 1975 5 Clingan
made the initial contact with the Union, and she, together
with Minko, signed and solicited union authorization cards
from fellow employees By August 19, the Union claimed
majority support, demanded recognition from Respondent
as exclusive bargaining agent, and filed an RC petition in
Case 8-RC-10045
4 See Member Fanning's separate concurrence in Children's Baptist Home
215 NLRB 303 (1974)
5 Unless otherwise indicated all dates refer to 1975
Thereafter, on September 6, at a meeting with the wait-
resses, Jerry Powell addressed himself to the issue of union
representation 6 Powell informed the employees that he
had heard talk about their wanting a union, and that he
didn 't care one way or the other , but went on to indicate
that there would be certain changes made if the Union
came in which would be disadvantageous to the employees
As examples, Powell indicated that employees would be
required to pay taxes on the full amount of their income,
including tips, that employees would no longer be able to
drink on the job, 7 and that waitresses would be required to
stay at their stations during the show 8 Following Powell's
remarks, a few waitresses expressed their opposition to
union representation Thereafter Liz Daley, Respondent's
day manager and an alleged supervisor ,9 who at the time
was admittedly curious and doubtful that the Union in fact
represented a majority, suggested that the employees have
a "show of hands" on that question When Carole Pressler,
a waitress, indicated that she would have no part of such a
vote, Daley suggested a secret ballot At this point, Powell
left the room Clmgan then told Daley that it would be
unlawful to have such an election since that now was a
matter within the responsibility of the NLRB Minko add-
ed that since the unit included certain employees, such as
busboys and cooks, who were not present at the meeting,
no such vote could be held With that, no vote was con-
ducted, and the meeting ended
C The Events Leading to the Discharges
About 6 p in on Monday, September 8, the Union's
business agent, John Kalnicki, telephoned Clingan asking
that she come to the union hall at 10 o'clock the next
morning Later that same evening, Becky Schneider tele-
phoned Clingan asking if she would like to work a lun-
cheon at Pickle Bill's the following day 10 Clingan told
Schneider that she did not know if she would be able to
obtain a babysitter,ll but suggested that, should she be
6It was customary for Respondent to hold regular Saturday night meet-
ings at which Powell would address employees concerning various problems
in the operation of Pickle Bill's There is no evidence that the question of
union representation was discussed at any time prior to the September 6
meeting
7 Pursuant to the employment practices existing on September 6, upon
conclusion of the first show , at or about 10 p in, the waitresses were free to
obtain cock,ails for their own consumption without charge
8 Also as of September 6, waitresses , while a show was in progress, were
allowed to take a break
v The General Counsel contends , and Respondent denies , that Elizabeth
Daley and Becky Schneider are supervisors Schneider did not testify, and
Daley, a basically untrustworthy witness, whose testimony was shifting,
contradictory, and lacking in candor is discredited insofar as her testimony
conflicts with that of Minko and Clingan Based on the credited testimony
of the latter I find that Schneider and Daley, Respondent's manager and
assistant manager, respectively , were supervisors within the meaning of the
Act Employees were informed by Powell that both had the power to hire
and fire and that their directions were to be taken as coming from Powell
They assigned work paid for deliveries, adjusted customer complaints and
considering Powell s frequent absences from the restaurant presumably
were often called upon to exercise independent judgment in running the
operation
10 Both Clingan and Minko worked regular shifts at Pickle Bill's com-
mencing at 5 p in Clingan s regular shift was on Wednesday , Friday Satur-
day, and Sunday Minko's normal shifts were on Thursday, Friday, Satur
day, and Sunday
ii Clingan is a widow, with five small children
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
needed, Schneider should call her before 9 30 a in on the
following day and she would attempt to make arrange-
ments so that she could work Schneider did not call the
following morning 12
Also on the evening of September 8, Minko received a
telephone call from Schneider, asking her to work the lun-
cheon In declining to work, Minko advised Schneider that
her stepsister was visiting from out-of-town and that she
didn't want to work the luncheon Schneider then said
okay, just disregard the call 13
That same evening, Clingan telephoned Mmko, concern-
ing her conversation with Kalmcki, and asked Minko to
accompany her to the union hall the next morning Minko
agreed to do so
Upon their arrival at the union hall on September 9,
Minko and Clingan were informed that there would be a
hearing at the NLRB that morning on the pending election
petition After both expressed concern as to their attending
the heating, they were taken to the office of the Union's
lawyer, who offered assurances that no reprisals could be
taken against them They then went to the NLRB Regional
Office
Respondent apparently received no notice that a hearing
had been scheduled for September 9 Thus, no manage-
ment representative was present After unsuccessful efforts
to contact Powell, the hearing was opened, and Minko and
Clingan, the only two employees present, were called to
testify Their testimony apparently was required by
Powell's absence and was limited to matters concerning the
propriety of the Board's asserting jurisdiction over
Respondent's operations
After the hearing, Clingan worked her regularly sched-
uled shifts on September 10, 12, and 13 Minko worked her
regularly scheduled shifts on September 11, 12, and 13
On Saturday, September 13, in the latter part of their
shift, while Chngan and Minko were apparently on a
break, both were summoned to meet with Powell at the
bar Powell at that time told the girls that, as he had previ-
ously indicated, he didn't care whether a union organized
Pickle Bill's or not Powell went on to state that he also
didn't care that the girls had not worked the luncheon, but
that he resented, in his words, according to credited testi-
mony, "the fact that you lied about why you couldn't work
the luncheon and testified at the labor Board " 14 Powell
then told the two girls that they should consider this to be
their last night working at Pickle Bill's Accordingly, Clin-
gan and Minko obtained their checks, cleaned their sta-
tions, and left the premises
D Concluding Analysis
Respondent does not dispute that Section 8(a)(4), under
established Board policy, is sufficiently comprehensive to
12 Schneider, Respondent's manager, did not testify, and the above is
based on the entirely believable, uncontradicted testimony of Chngan
13 The foregoing is based on the credited, uncontradicted testimony of
Minko
14
The foregoing is based on the credited uncontradicted testimony of
Minko and Clingan Indeed their testimony in this respect is confirmed by
the prehearing affidavit of Liz Daley
assure protection against reprisals to employees who testify
on behalf of a union in a representation proceeding f5
Nonetheless, Respondent, relying on the uncorroborated
testimony of Jerry Powell, defends on grounds that the dis-
charges were not, in the least, motivated by Minko and
Clingan's having testified in the representation hearing, but
resulted solely from Powell's belief that they had lied in
explaining their unwillingness to work the luncheon Thus,
the defense is linked critically to the credulity of Powell's
explanation of the reason for his actin i against Minko and
Clingan, as summed up in the following portion of his testi-
mony on direct examination
MR LEVEY What action did you take if any with
regard to the firing of Irene Minko and Linda Clingan
on September 13, 19759
MR POWELL I terminated their employment at
Pickle Bill's because I believed that they lied and I had
sufficient evidence, in my opinion, that they had lied
to me, and I will not put up with lying or cheating,
period
From observation of his demeanor, and consiaeration of
his testimony against the probabilities arising from undis-
puted portions of the record, I regarded Powell as an un-
trustworthy witness whose uncorroborated explanation for
the discharge is discredited 16 Instead, the entire record
points not only to the unlikelihood that Powell was im-
pelled by a professed intolerance of prevarication, but sup-
ports a strong inference that it was the testimony at the
preelection hearing which furnished the controlling impe-
tus for the discharges in issue here
Thus, it is conceded that waitresses were not required to
work luncheons of the type that Minko and Clingan de-
clined to work on September 9 17 All who testified as to the
nature of the obligation of waitresses to work such lun-
cheons described it as "voluntary " 18 Indeed, there is no
evidence that waitresses were ever informed by any man-
agement representative that they were expected to work
these luncheons, or required to furnish an excuse for refus-
ing to do so From all that appears, Clingan and Minko,
and any other similarly situated employee, were privileged
to decline to work such luncheons for whatever reason they
chose
Furthermore, Respondent maintained no policy where-
15 See, e g, Petrolane Alaska Gas Service Inc, 205 NLRB 68, 75 (1973)
(Dolan)
16
Powell at no time communicated with Minko or Chngan to examine
their respective reasons for not working the September 9 luncheon His
sources of information in this respect were limited to Schneider and Daley
However, Daley testified that Minko had not lied to her and Schneider was
not called as a witness The failure of Daley to substantiate Powell and
Respondent s failure to call Schneider hardly enhance Powell's credibility
1 Minko without contradiction, testified that she had previously declined
to work about six of such lunches in the past
18
Powell, while agreeing that working the lunches is not mandatory, on
examination by his own counsel subsequently clarified his prior testimony
by relating "it's expected that if they are needed that they will work there,
unless they have a good reason why not Considered against other testimo-
ny in the record, this definition seemed argumentative and self-serving, en-
tirely too restrictive, and an interpretation not expressive of the ordinary
meaning given the term voluntary It is more aptly descriptive of mandatory
work condition This aspect of Powell s generally unbelievable testimony
impressed me as an effort on his part to lend an exaggerated flavor of
seriousness to the falsehoods which he imputes to the dischargees
PICKLE BILL'S, INC 417
by employees were on notice that a false explanation for
missing work could result in discharge Nor does it appear
that any employee had ever been discharged for this reason
in the past
In any event, there is no evidence that Clingan or Minko
falsely explained their refusal to work the luncheon in
question here 19 In this connection, Respondent's counsel
correctly observes that the absence of such evidence is not
necessarily fatal to the defense, that is, were I to find that
Powell acted on a belief that they had However, other
than Powell's subjective testimony, there is no independent
support for such a finding either in logic or the testimony
As indicated, the probabilities are to the contrary Were
one to accept Powell's own testimony as to the basis for his
conclusion that the dischargees had lied, his action in ef-
fecting the discharge on that alleged ground is fraught with
suspicion Thus, it is entirely possible, from the facts
known to Powell, that both Mmko and Clingan could have
given honest explanations for their refusal to work For,
the notice of hearing in Case 8-RC-10045, dated Septem-
ber 2, scheduled the preelection hearing for II a in on
September 9, the luncheon was to run from 11 a in to 3
p in From all that Powell knew, it was entirely possible
that Clingan's babysitter problem, though not interfering
with a brief appearance at the hearing, might well have
precluded her from working until 3 p in that day At the
same time, Minko could well have considered working the
luncheon as a greater inconvenience to her sharing the day
with her sister , both in terms of the time and physical ener-
gy consumed, than a possibly brief appearance at an
NLRB hearing Nevertheless, Powell, who professed to
consider a falsehood as a matter of grave concern, 0 and
who presumably would regard such an accusation as equal-
ly serious, made no effort to explore the possibility that
Minko and Clingan may not have lied He at no time
sought them out in the interest of obtaining their explana-
tion for any apparent inconsistency in their whereabouts
19 Based on the uncontradicted testimony of Minko and Clmgan hereto-
fore set forth in the text, it is apparent that neither gave a false explanation
for not working the luncheon Contrary to the arguments made in
Respondent's brief, no inference to the contrary is to be drawn from the
General Counsel's failure to call additional corroborating witnesses where
his own testimony not only was uncontradicted but confirmed by the only
witness offered by Respondent I also find no merit in the argument that
questionable aspects of Kalnickis testimony warrants a conclusion that
Minko and Clingan had lied with respect to the luncheon Furthermore, the
failure of Minko and Clingan to defend themselves against Powell s charge
at the termination interview, that they had lied is not regarded as tanta-
mount to an admission on their part that his accusation was true
20 Of interest here is the testimony adduced by the Respondent from
Joanne Olsen, a former part-time waitress and the sister of Linda Clingan
Apparently while Olsen was employed by Respondent she had developed a
pattern of absences from her assigned shift, which she attempted to excuse
in each instance on the basis of sickness Powell suspected that Olsen had
been lying, and confronted her with his suspicions According to Powell s
testimony, after receiving assurances from Olsen that she in fact had been
sick on each occasion, he simply warned her that if he ever caught her lying
to him she would be discharged This is the only evidence that any employee
had been warned as to the possibility of discharge in the event they gave a
false explanation to justify an absence More significant, however, and
weighing in support of a pretext finding, is the fact that in contrast with
Clingan and Minko, Powell did not, on the basis of his suspicions hastily
discharge part-time employee Olsen but provided the latter an opportunity
to defend herself
on September 9 21 Yet, Powell would have me believe that
he acted on his suspicion, derived entirely from secondary
sources, and in good faith terminated two of his most se-
nior and best waitresses, all because he sensed that they
had lied to cover a refusal to work a luncheon, which they
could decline to work for any reason they wished
Based on my general disbelief of Powell, I am persuaded
that his assertion that he terminated Clingan and Minko
because he believed that they lied is incredible and was
seized upon as pretext to cover his resentment that Clingan
and Minko had given testimony before the NLRB,22 the
true cause of their discharges By terminating Clingan and
Minko on such grounds, Respondent violated Section
8(a)(4) and (1) of the Act
CONCLUSIONS OF LAW
1 Pickle Bill's, Inc, is, and at all times material has
been, an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act
2 Hotel, Motel, Restaurant Employees and Bartenders
Union Local No 10, AFL-CIO, is, and at all times materi-
al has been, a labor organization within the meaning of
Section 2(5) of the Act
3 Respondent violated Section 8(a)(4) and (1) of the
Act by discharging Linda Clmgan and Irene Minko be-
cause they gave testimony in a NLRB representation hear-
ing
4 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and to take certain affirma-
tive action designed to effectuate the policies of the Act
To remedy the unlawful discharges of Irene Minko and
Linda Clingan, I shall recommend that Respondent be or-
dered to offer them immediate reinstatement to their for-
mer positions or, if such jobs no longer exist, to substantial-
ly equivalent positions, without loss of seniority or other
rights and privileges, discharging if necessary any replace-
ments, and make them whole for any loss of earnings they
may have suffered by reason of the discrimination against
them, by payment of a sum of money equal to the amount
that they normally would have earned from the date of
discrimination to the date of a bona fide offer of reinstate-
ment in accordance with the Board's formula set forth in
F W Woolworth Company, 90 NLRB 289 (1950), with in-
terest thereon at the rate of 6 percent per annum, as set
21 In evaluating Powell's credibility, I have not overlooked Minko s un-
contradicted testimony that when she first obtained employment at Pickle
Bill s Powell, in connection with Minko's effort to purchase a car falsely
reported to a loan company that Mmko had been employed for 1 year
2It is noted that after September 9, but before the discharges, Powell
admits to a conversation with a representative of the NLRB in which he was
informed that, based on the testimony of Clingan and Minko, his restaurant
would probably be considered as within the Board s jurisdiction Powell
claims that, though he regarded any such testimony as erroneous he was
not upset with that but was upset solely with the fact that a hearing had
been held without his presence
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forth in Isis Plumbing & Heating Co, 138 NLRB 716
(1962)
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I issue the following recommend-
ed
ORDER23
Respondent Pickle Bill's, Inc, Cleveland, Ohio, its offi-
cers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Discouraging employees from giving testimony un-
der the Act by discharging or in any other manner discrim-
inating against them because they have given testimony in
a hearing conducted by the National Labor Relations
Board
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed by Section 7 of the Act
2 Take the following affirmative action which is found
necessary to effectuate the purposes and policies of the
Act
(a) Offer to Linda Chngan and Irene Minko immediate
and full reinstatement to their former positions, without
prejudice to their seniority and other rights and privileges,
dismissing if necessary any replacements, and make them
whole for any loss of earnings resulting from the discrimi-
nation against them, by payment of a sum determined in
accordance with the formula 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-
sary to analyze the amount of backpay due under the terms
of this recommended Order
(c) Post at its place of business in Cleveland, Ohio, cop-
ies of the attached notice marked "Appendix " 24 Copies of
23 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
24 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by Order
said notice on forms provided by the Regional Director for
Region 8, after being duly signed by Respondent's author-
ized representative, shall be posted by the Respondent im-
mediately upon receipt thereof, and shall be maintained by
it for 60 consecutive days thereafter, in conspicuous places,
where notices to employees are customarily posted Re-
spondent shall take reasonable steps to insure that said
notices are not altered, defaced, or covered by any other
material
(d) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith
of the National Labor Relations Board shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage our employees from giving
testimony under the National Labor Relations Act by
discharging or in any other manner discriminating
against them because they have given testimony in a
proceeding before the National Labor Relations
Board
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights to self-organization, to form, join, or assist
Hotel, Motel, Restaurant Employees and Bartenders
Union Local No 10, AFL-CIO, or any other labor
organization, to bargain collectively through represen-
tatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargain-
ing or other mutual aid or protection and to refrain
from any and all such activities-
WE WILL offer Linda Clingan and Irene Minko im-
mediate reinstatement to their former jobs and we will
make them whole for any wages lost as a result of our
discrimination against them, plus interest at 6 percent
per annum
PICKLE BILL'S