Poor Richard's Pub

National Labor Relations Board - Board Decisions

Oct 17, 1975

220 N.L.R.B. 1363 (N.L.R.B. 1975)

POOR RICHARD'S PUB
Poor Richard's Pub-A California Corporation and
Culinary Alliance and Bartenders Union Local 498
and Culinary Alliance and Bartenders of Santa
Barbara and Ventura County, Local 498, affiliated
with Hotel and Restaurant Employees and Barten-
ders International Union, AFL-CIO, Petitioner.
Cases 31-CA-4371 and 31-RC-2736
October 17, 1975
SUPPLEMENTAL DECISION, ORDER, AND
DIRECTION
By MEMBERS FANNING, JENKINS, AND PENELLO
On March 26, 1975, the Board issued a Decision
and Order I in this case in which it found that it
would assert jurisdiction over Respondent, and or-
dered the case remanded to Administrative Law
Judge James T. Rasbury for such further action as
was required in light of the Board's assertion of juris-
diction, including the issuance of a decision on the
merits of the complaint. On May 23, 1975, the Ad-
ministrative Law Judge issued the attached Supple-
mental Decision. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in opposition to Respondent's
exceptions.
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 Supplemental Decision in light of the excep-
tions and briefs and has decided to affirm the rulings,
findings, and conclusions 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-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Poor Richard's Pub-A
California Corporation, Santa Barbara, California,
its officers, agents, successors, and assigns, shall take
the action set forth in said recommended Order.
DIRECTION
It is hereby directed that Case 31-RC-2736 be re-
manded to the Regional Director for Region 31 who
shall, pursuant to the Rules and Regulations of the
Board and within 10 days of the date of this Supple-
1363
mental Decision open and count the ballots of Liza-
beth Kaska, Gael Menze, Shelagh Hill, Gayle Nagy,
Judith Weldon, David Anglin, Chris Brady, Tim Bra-
dy, Janice Crampton, Mary C. Giles, Susan Glo-
bisch, Bill McDonough, Jacob Michel, Susan Marat-
ti, Sydney Moseley, Kevin Quirk, Craig Toms,
Sydney Berg, Lorraine Phillips, Karen Longford, and
Patricia MacAfee, and thereafter issue and serve on
the parties a revised tally of ballots. In the event that
the results as shown by the revised tally, including
the above ballots, are determinative of the election,
the Regional Director shall issue the appropriate cer-
tification.
IT IS FURTHER DIRECTED that, if the challenge to the
ballot of Mary Nolan becomes determinative of the
election, the Regional Director conduct a further in-
vestigation into any relevant factors necessary to re-
solve the status of her ballot.
IT IS FURTHER DIRECTED that Case 12-RC-2736 be,
and it hereby is, referred to the Regional Director for
Region 31 for further proceedings pursuant hereto.
217 NLRB No 24
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY , Administrative Law Judge: These
consolidated cases were heard by me in Santa Barbara,
California, on September 3, 4, and 5, 1974. In my Decision
dated November 14, 1974, I ordered the unfair labor prac-
tice complaint dismissed on the theory that the Board
would not assert jurisdiction in a case where an employer
does not meet the Board 's discretionary jurisdictional stan-
dards at the time the alleged unfair labor practices oc-
curred even though within the 10 (b) period from the time
the charge was filed the employer's business had expanded
sufficiently to meet the required standard.' Resolution of
the voting rights of the challenged ballots in Case
31-RC-2736 was made in a manner consistent with dis-
missal of the unfair labor practice complaint . The Board in
its Decision dated March 26, 1975,2 was of the opinion that
Furusato, supra, was readily distinguishable and based on
N.L.R.B v Guernsey- Muskingum Electric Cooperative, Inc.,
285 F.2d 8 (C.A. 6, 1960), concluded that it was appropri-
ate to assert jurisdiction and remanded the case to this
Administrative Law Judge for a more complete consider-
ation of the unfair labor practices alleged. It follows that
the resolution of the voting rights of the challenged ballots
must be reconsidered and resolved in a manner consistent
with the final resolution of the complaint in Case
31-CA-4371.
On January 31, 1975, while the above-captioned matter
Citing Furusato Hawaii , Ltd, 192 NLRB 105 (1971)
1217 NLRB No 24 (1975)
220 NLRB No. 215
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was pending before the National Labor Relations Board,
counsel for the General Counsel filed with the Board a
motion to amend complaint , reopen record , and remand
for further hearing Alternatively , the General Counsel
filed a motion to reopen the record , consolidate Case
31-CA-4980, and remand for further hearing These mo-
tions were also remanded to the Administrative Law Judge
for disposition On April 1 , 1975, counsel for the General
Counsel moved to withdraw the previously filed motions
and, when neither counsel for Respondent nor the Charg-
ing Party opposed the General Counsel 's motion to with-
draw, it was , by order of this Administrative Law Judge
dated April 14, 1975, granted
Upon the entire record and from my observation of the
demeanor of the witnesses , I hereby make the following
FINDINGS OF FACT
I THE ISSUES
1 What were the motivating forces causing the Respon-
dent to discharge Kaska, Menze, Hill, Nagy, and Weldon9
2 What precipitated the strike which commenced on
January 22, 19749 (Was it an economic strike or an unfair
labor practice strike")
3 Did Respondent illegally promulgate a no-solicitation
rule9
4 What are the voting rights of each of the 35 chal-
lenged voters who voted in the election conducted May 2,
1974, among Respondent's employees (Case 31-RC-2736)9
II JURISDICTION
Respondent, a California corporation, is engaged in the
business of operating two restaurants The concern here is
known as Squire Richard's Pub and is located in Santa
Barbara, California The other is located in Woodland
Hills, a suburban area of Los Angeles, California Respon-
dent is principally owned by Richard Headley and Loretta
Headley, husband and wife, although there are a number
of other small interest owners Respondent and Charging
Party entered into a stipulation for consent election agree-
ment in Case 31-RC-2736 on April 16, 1974, stipulating,
inter alia, that the combined gross volume of business of
the two restaurants exceeded the Board's discretionary ju-
risdictional standards of $500,000 gross business Under
these circumstances and for the reasons delineated in the
remand, the Board has concluded that it is appropriate to
assert jurisdiction
III THE LABOR ORGANIZATION INVOLVED
The Culinary Alliance and Bartenders of Santa Barbara
and Ventura County, Local 498, affiliated with Hotel and
Restaurant Employees and Bartenders International
Union, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act
3 Her nickname was Poppet and there are frequent references in the Iran
script to Poppet Hill
IV THE ALLEGED UNFAIR LABOR PRACTICES
A The Discharges
Richard Headley actively participated in the manage-
ment of the Respondent's Santa Barbara restaurant from
the day it first opened until the early summer of 1973
Beginning in May 1973, Richard Headley spent most of his
time supervising the construction of a similar restaurant
located in the Woodland Hills area near Los Angeles, Cali-
fornia During Richard Headley's absence from the Santa
Barbara restaurant, the only location involved in this dis-
pute, the profit-and-loss statement took a definite down-
turn and in October registered a substantial loss At that
time, Loretta Headley assumed an active role in the man-
agement of the Santa Barbara restaurant
Shelagh Hi113 was employed in May 1971 and was serv-
ing as head waitress in the fall of 1973 Part of Shelagh
Hill's duties as head waitress had been the preparation of
the weekly work schedules for the waitresses ° However, in
the summer of 1973, that system was changed to a straight
rotation of schedules Under the rotating system, Shelagh
Hill's only responsibility with the scheduling was to make
sure it was posted so that all employees could refer to it
and in the event a banquet was scheduled, she would make
certain that at least one waitress was available to take care
of the banquet The latter part of December 1973, the man-
ner of scheduling was again changed and Mrs Headley's
daughter, Lon, was given more of the night and weekend
shifts (the most lucrative from the standpoint of tips) Two
of the waitresses, Lizabeth Kaska and Mary K Giles, re-
ceived fewer evening assignments than had been the cus-
tom On December 20, Shelagh Hill questioned Mrs Head-
ley regarding the schedule to be worked the week of
December 24, because the hours were not evenly distribut-
ed among the girls At that time, Mrs Headley indicated
she was not going to change the schedule The matter of
the schedule was raised again on December 22 with Mrs
Headley, and again she refused to change the schedule
Later that same evening, Shelagh Hill, accompanied by
Gael Menze and Jan Crampton, asked Mr Headley if he
would discuss the matter with them On this occasion, ac-
cording to the testimony of Shelagh Hill, whom I fully
credit, Shelagh pointed out the inequities of the schedule
and how it could be easily changed to provide for an even
distribution of the work Mr Headley was agreeable to the
changes and felt that they would be desirable, however,
Mrs Headley entered the office and abruptly vetoed any
changes in the schedule which she had prepared The meet-
ing came to a quick termination
A meeting of several employees was held at Hill' s house
on the morning of December 24, to consider their com-
plaints with the management This meeting concluded with
Respondent asserts that Shelagh Hill is a supervisor under the Act I do
not find her to be a supervisor At most she is only a leadwoman paid a
few cents higher wage because of her experience and a few extra duties she
performed in leading the other girls Her authority to recommend new
employees was no more than that of any other employee who might men
tion to management that he or she knew of someone looking for work
POOR RICHARD'S PUB 1365
a petition being drafted and signed by all employees pre-
sent (see G C Exh 3) which was presented to Mr Headley
The petition asked to have the schedule changed, an op-
portunity for the employees to "air" their grievances with
management and a request that there be no retribution
taken against those employees who had participated in the
signing of the grievance petition The petition was present-
ed and, according to the credited testimony, there ap-
peared to have been some sympathy for the employees ex-
pressed by Mr Headley, but Mrs Headley prevented
anything from being changed and prevented Mr Headley
from signing any agreement to refrain from adverse action
against the petitioners
On that same day, Shelagh Hill contacted an attorney
from the Legal Collective named Warren Adler Adler sug-
gested that it might be a good idea if all of the employees
got together to ascertain if they were interested in forming
a collective-bargaining unit
There followed three or four meetings which were held
at the homes of Kaska and Hill These employee meetings
resulted in the preparation of a petition by the attorney,
Warren Adler, requesting that the Respondent recognize
and bargain with the employees through the Santa Barbara
Workers' Union (see G C Exh 4) Warren Adler testified
that he presented the petition to Mr and Mrs Headley on
the evening of January 6, 1974, at which time Mr Headley
indicated that he would have to consult with his attorney
The parties stipulated that an election petition was filed
with Region 31 in Case 31-RC-2660, on the morning of
January 8, 1974 5
On January 7, 1974, Shelagh Hill received a written rep-
nmand for "clocking in before scheduled to work on the
following dates Friday, December 28, Thursday, January
3, and Friday, January 4" (see G C Exh 5) Proof that
there had ever been instructions, either oral or in writing,
against clocking in early was lacking Miss Hill testified
that she had never received a written warning for any rea-
son before and she had never known of any other employ-
ee to receive a written warning Miss Hill was not sched-
uled to work on January 8, but when she reported for work
on January 9, she was unable to find her timecard and
upon checking with Mrs Headley she was advised that she
was being discharged for "failure to do your duties as head
waitress" The payroll record stub (G C Exh 6), which
Shelagh Hill received at the time of her actual termination
on January 9, was dated January 8 This would tend to
indicate that the decision had been made to terminate Miss
Hill on January 8, 1974, at a time when she was not at
work If there was merit in the reason advanced, why was it
not included in the warning received on the last day
worked9
On January 7, Gael Menze, who had been employed at
the restaurant since February 1972, received a written
warning advising that her work habits and general attitude
had been found unsatisfactory Gael Menze had partici-
pated in all of the employee meetings and had signed the
5 The record is not complete as to the exact disposition of this case but
presumably it was withdrawn at the time the petition in Case 31-RC-2678
was filed In any event knowledge of its disposition is not necessary in
reaching a decision in this case
two petitions (G C Exhs 3 and 4) presented to manage-
ment She had also been one of the girls who spoke to Mr
Headley concerning the unfair distribution of work as
scheduled by Mrs Headley
On January 8, 1974, after Gael Menze had completed
her regular luncheon shift at 2 30 p m, she was told by
Mrs Headley they were going to have to let her go When
she asked why, she was told it was because of her attitude
Gael Menze testified that because of the warning note
which she had received the day before that she had been
particularly careful with her customers that day
Liz Kaska was also discharged on January 8, 1974, alleg-
edly because of her refusal to turn over to the management
a sum of money which had been found at one of her sta-
tions Liz Kaska testified that after the money had been
found by one of the busboys, she informed the busboy that
she had served those people and knew the name of the
party who had probably lost it Shelagh Hill and Liz Kaska
then attempted to reach a Mr Atkinson on the telephone
but were unsuccessful The following day when Mr Atkin-
son telephoned the restaurant to inquire about his loss and
described the waitress, Mrs Headley questioned Liz Kaska
who readily acknowledged that she had the money and
that she had tried to reach Mr Atkinson in an effort to
return it Thereafter, Liz Kaska refused to give the money
to Mrs Headley, but she went home immediately after her
shift and returned to the restaurant with the money await-
ing Mr Atkinson so that she might return it personally
Meantime, Mrs Headley asked Liz Kaska on two or three
different occasions to give her the money and became
"miffed" when Kaska would not deliver the money to her
Mrs Headley finally advised Kaska that she was being
discharged for violating a company rule The posted rules
(see G C Exh 8) did not specifically indicate what should
be done with articles that were found in the restaurant I
am convinced that while Liz Kaska's action may not have
been that of an exemplary employee, nonetheless she had
no intentions of misappropriating the money and at all
times was making a sincere effort to return it to its rightful
owner Nothing in her conduct could have caused Mrs
Headley to believe otherwise In any event, while her con-
duct may have warranted some criticism, it was not in vio-
lation of any specific house rule regarding what should be
done with money found in the restaurant
On or about January 9, Shelagh Hill, Gael Menze, and
Liz Kaska started picketing the Respondent's Santa Barb-
ara restaurant in what has been referred to as an informa-
tional picket line
Gayle Nagy was employed from October 1973 as a wait-
ress by Respondent until she was discharged on January
17, 1974 Miss Nagy had been active in attending the em-
ployee meetings and had signed both petitions presented to
the management (see G C Exhs 3 and 4) On January 17,
Miss Nagy received a call from John Garnier, the manager,
advising her that she was being discharged because they
had received complaints from customers about her attitude
and that she had told customers not to cross the picket line
Miss Nagy denied ever having told anyone not to cross the
picket line and further indicated that she had not discussed
the Union with any customers after the publication of
Respondent's no-solicitation rule (see G C Exh 10)
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Judith Weldon was first employed in June 1972 and
worked until January 19, 1974, at which time she received
a 2-week suspension 6 Thereafter, shejoined the picket line
on January 22 and on either January 24 or 25, at a time
when she was participating in the picketing, she was hand-
ed a paycheck marked, "Termination " According to Wel-
don, while engaged in picketing, she and another, named
Kevin Quirk, "were called over by Mrs Headley, who was
standing out there, and we were handed a paycheck and I
looked at it and it said `Termination' and I said to her, how
can I be terminated when I am only suspended"
She said, "'You were terminated the moment you joined
the picket line "' At the hearing, counsel for Respondent
took the position that Judith Weldon had never been fired
Shelagh Hill testified that there were general employee
meetings held on January 18 and 19, 1974, at the Union's
office On January 22 at 10 a in , a general meeting of all
employees was held and it was decided that a general strike
would be called to protest the discharges of Kaska, Menze,
and Hill
Unquestionably Shelagh Hill was the most active
spokesman on behalf of the employees Gael Menze and
Jan Crampton accompanied Hill when the matter of ine-
quitable scheduling was discussed with Mr and Mrs
Headley who had full knowledge of who was leading the
protest The early employee meetings were held at the
homes of Liz Kaska and Hill Hill, Kaska, Nagy, and
Menze signed the December 24 petition to management
(G C Exh 3) Respondent had full knowledge of the
names of the leaders of the concerted activity on the part
of the employees When Warren Adler presented the em-
ployees' petition to Respondent on January 6, 1974, re-
questing that the Santa Barbara Workers' Union be recog-
nized by Respondent for purposes of collective bargaining,
the names of Hill, Kaska, Menze, Nagy, and Weldon ap-
peared thereon There can be no doubt that Respondent
had full knowledge of the union interest and activity of
Hill, Kaska, Menze, Nagy, and Weldon
Respondent's primary defense to the discharges might be
broadly characterized as economic Respondent's position
is this The Santa Barbara restaurant started losing money
in the summer of 1973 when it was necessary for Mr
Headley to devote more and more of his time to the Wood-
land Hills restaurant as it approached completion In the
fall of 1973, Mrs Headley found it necessary to devote
more and more of her time to supervising the Santa Barb-
ara restaurant in an effort to correct the downturn in busi-
ness Respondent argues that the role she played and the
changes she instituted not only corrected the economic
downturn but brought about a resentment on the part of
several employees-particularly Shelagh Hill-which ne-
cessitated their discharge Respondent's counsel argues in
his beef that Mrs Headley acted "not to discourage any
concerted activity, but to manage the business that they
owned and not let the employees do the management for
them "
Where the relationships between employees and employ-
6 There was testimony that she was discharged in November 1973 for
sitting at a table after her shift was over but she was given her job back on
the next day
er is not governed by a labor agreement, the employer has
a perfect right to unilaterally promulgate such working
rules and regulations as is deemed necessary for an effi-
cient and economically sound business operation Howev-
er, if those rules and regulations become an irritant to the
employees and they seek to concertedly alter or change
their working conditions, the employer may not interfere
with, coerce, or restrain the employees engaging in such
concerted activities I Nor may an employer discriminate as
to tenure of employment to encourage or discourage mem-
bership in a labor organization 8
In the instant case the employees acted concertedly with-
out benefit of a labor organization, and later with the aid
of a labor organization A careful analysis of the record
reveals Mrs Headley's testimony to be contrived She was
vague, uncertain, and vacillating I am convinced from all
the testimony that she siezed upon the weakest of excuses
to discharge employees Hill, Kaska, Menze , Nagy, and
Weldon 9 in order to hide her real purpose of seeking to
disrupt and destroy the efforts of the employees to bargain
collectively While Nagy was told of her discharge by John
Gamier, the manager, Gamier was never called to testify,
it is quite apparent that at this time Mrs Headley was
running the show The testimony of witnesses Hill, Nagy,
Kaska, Menze, and Weldon was much more straightfor-
ward and candid than that of Mrs Headley Where there is
a conflict, the testimony of the employees is credited
Moreover, this conclusion is buttressed by the unbiased
and credited testimony of Don Atkinson, a customer, who
testified that when he asked Lori Headley Stefanos if Kas-
ka had been fired for taking the money, she replied, "Oh,
no, that wasn't the only reason That she was trying to
organize something at the Pub itself " Regardless of wheth-
er Lori Headley Stefanos is to be regarded as an agent of
Respondent, as the daughter of the owners, and living in
their home at the time, she was undoubtedly privy to what
might otherwise have been private discussions between Mr
and Mrs Headley
r Sec 8(a)(1) of the Act reads
It shall be an unfair labor practice for an employer to interfere with
restrain or coerce employees in the exercise of the rights guaranteed in
section 7
Sec 7 states
Employees shall have the right to self organization to form join or
assist labor organizations to bargain collectively through representa-
tives of their own choosing and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec
tion and shall also have the right to refrain from any or all such activi
ties except to the extent that such right may be affected by an agree
ment requiring membership in a labor organization as a condition of
employment as authorized in section 8(a)(3)
8 The relevant part of Sec 8(a)(3) of the Act reads
It shall be an unfair labor practice for an employer-(3) by discrimma
tion in regard to hire or tenure of employment or any term or condition
of employment to encourage or discourage membership in any labor
organization
'in my earlier Decision I accepted Respondent counsels argument that
Weldon was never terminated because under the prior holding the strike
was purely economic and her rights to vote and to participate in the strike
were not adversely effected by her employment status Having discredited
the testimony of Mrs Headley I now find and hold that Judith Weldon was
terminated because she joined the picket line
POOR RICHARD'S PUB
The discharges of Kaska, Menze, Hill, Nagy, and Wel-
don were discriminatorily motivated and violated Section
8(a)(3) and (I) of the Act.
B. The No-Solicitation Rule
Sometime in mid-January 1974, Respondent caused the
following notice to be promulgated (G C Exh. 10):
NO SOLICITATION PERMITTED DURING
WORKING HOURS
WORK TIME IS FOR WORK
It is important to you, as well as to this restaurant, that
we consistently maintain our efficiency. We must in-
sist that all employees maintain a high level of work
concentrating on service and courtesies to our custom-
ers. Please conduct your personal business on your
time, such as lunch time and coffee break periods.
Your cooperation will be appreciated
John Gamier (signature)
POOR RICHARD'S PUB
Each of the employees was asked to read and sign the
notice
This no-solicitation rule is clearly confined to working
time and the importance of allowing an employer, engaged
in serving the public (i.e., restaurant, department stores,
etc.), to restrict employees in their activities which might be
controversial or offensive to some customers is fully recog-
nized.10 Under normal circumstances such a no-solicitation
rule, worded as this one, would not be violative of the Act.
Nevertheless, where there has never been a no-solicitation
rule, and then a rule, such as that involved here, is promul-
gated at the very height of the union activity and coming as
it did immediately after the discharge of the leaders in the
union movement, it is reasonable to infer that the rule was
made solely to interfere with, restrain, and coerce employ-
ees in the exercise of their Section 7 rights and I so fmd.11
A rule valid on its face is also presumptively valid as to its
promulgation and enforcement, however, where the evi-
dence is so overwhelmingly convincing that it was promul-
gated and enforced for discriminatory reasons the pre-
sumption of validity is rebutted.
C. The Strike
This opinion has already found the discharges of em-
ployees Kaska and Menze on January 8, 1974, and Hill on
January 9 were for discriminatory reasons violative of the
Act. The picketing begun by these employees on January 9
was in the nature of informational picketing. However, on
the morning of January 22, 1974, at a meeting held at the
Union, a majority of the employees agreed to strike in pro-
test of the unlawful discharge of their fellow workers (On
January 17, 1974, Gayle Nagy was added to the list of
unlawful dischargees.) A strike is characterized as an un-
fair labor practice strike if initiated in whole, or in part, in
10 See Famous-Barr Co, 59 NLRB 976, SNC Manufacturing Co, Inc, 174
NLRB 159 ( 1969), affd as modified 434 F 2d 473 (C A D C, 1970)
11 Ward Manufacturing, Inc, 152 NLRB 1270 (1965)
1367
response to unfair labor practices committed by the em-
ployer.12
I find the strike which commenced on January 22, 1974,
was, and at all times has been, an unfair labor practice
strike and the rights of the employees shall be resolved on
that basis.
CONCLUSIONS OF LAW
1. Respondent, Poor Richard's Pub, is a California cor-
poration engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Culinary Alliance and Bartenders of Santa Barb-
ara and Ventura County, Local 498, affiliated with Hotel
and Restaurant Employees and Bartenders International
Union, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following group of employees constitute an ap-
propriate unit for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act: All kitchen
and dining room employees, including the doorman em-
ployed at Squire Richard's Pub No 1, Santa Barbara, Cali-
fornia, excluding office clerical employees, guards and su-
pervisors as defined in the Act. 13
4. Richard Headley, Loretta Headley, and John Gamier
are supervisors and agents of Respondent within the mean-
ing of Section 2(11) and (13) of the Act.
5. The discharges of Lizabeth Kaska and Gael Menze
on January 8, 1974; Shelagh Hill on January 9, 1974;
Gayle Nagy on January 17, 1974; and Judith Weldon on
January 22, 1974, were motivated by the concerted em-
ployee activity of these named individuals and their indi-
vidual and collective support and activities on behalf of the
Union, thus discriminatory and in violation of Section
8(a)(3) and (1) of the Act.
6. By its course of conduct in promulgating a no-solici-
tation rule in mid-January 1974, Respondent has engaged
in unfair labor practices proscribed by Section 8(a)(1) of
the Act.
7. The strike commencing on January 22, 1974, was par-
ticipated in by a majority of Respondent's employees in
protest to the unlawful discharges of employees Kaska,
Menze, Hill, and Nagy and was an unfair labor practice
strike.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent as set forth in section IV,
above, occurring in connection with the operations de-
scribed in section II, above, have a close, intimate, 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.
12 Pecheur Lozenge Co, Inc, 98 NLRB 496 (1952), enfd as modified 209
F 2d 393 (C A 2, 1953), cert denied 347 U S 953
U The parties stipulated to the above unit and the Board found it to be an
appropriate unit in their decision dated August 12, 1974 , in Case
31-RC-2736
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE CHALLENGED BALLOT
Unfair labor practice strikers are employees entitled to
reinstatement and entitled to vote, but replacements for
unfair labor practice strikers are not entitled to vote 14 On
the basis of this legal principle and the findings herembe-
fore set forth, it follows that the unlawfully discharged em-
ployees Lizabeth Kaska, Gael Menze, Shelagh Hill, Gayle
Nagy, and Judith Weldon are employees entitled to vote
and the challenges to their ballots shall be overruled, the
ballots opened and counted
The following named employees were unfair labor prac-
tice strikers as of the date of the election, May 2, 1974, and
are entitled to reinstatement and thus the challenge to their
ballots shall be overruled-the ballots opened and count-
ed David Anglin, Chris Brady, Tim Brady, Janice Cramp-
ton, Mary C Giles, Susan Globisch, Bill McDonough, Ja-
cob Michel, Susan Maratti, Sydney Moseley, Kevin Quirk,
and Craig Toms 15
It appears from the record that employees Sydney Berg,
Lorraine Phillips, Karen Longford, and Patricia MacAfee
were all employed before the strike began in jobs included
within the bargaining unit and were working employees on
the date of the election The challenges to their ballots shall
be overruled, the ballots opened and counted
It appears from the evidence presented at the hearing
that the following named employees were hired as replace-
ments for the unfair labor practice strikers, thus the chal-
lenges to their ballots should be sustained Carl Perilli-
Mietti, Wayne Grooms, Shawn Headley, Juan Sanchez,
Debbie Shamal, Christine Smith, Miguel Alcantar Chaidez,
Ton Hennessey, James Torgensen, Emmanuel Tsompanos,
and Eric Peterson III
Lon Headley Stefanos is the daughter of the principal
owners, Richard and Loretta Headley, and is currently re-
siding in the guest home of her mother and father Al-
though she is working as a waitress and would normally be
within the bargaining unit, in a small corporate business
where the parents are the principal stockholders such as is
involved here, it is well established that sons and/or daugh-
ters are not entitled to vote The challenge to her ballot
should be sustained 16
On the basis of the evidence presented, the challenge to
the ballot of Russell Castillo should be sustained Castillo's
own testimony indicated that he voluntarily quit his job as
a dishwasher on January 7, 1974 However, according to
his testimony, on January 17 he talked to Richard Headley
and, after apologizing and asking for his job back, he was
told that it would probably be all right but that he would
have to come back to talk to John Gamier Castillo testi-
fied that he talked to Gamier who told him that he might
have his job back and to report to work on Saturday, Janu-
14 Lock Joint Tube Company 127 NLRB 1146 (1960) Tampa Sand &
Material Company 137 NLRB 1549 (1962)
15 Stnkers are presumed to have retained their interest in the struck job
and the burden is on the party challenging their eligibility to rebut that
presumption with evidence of abandonment Pacific Tile and Porcelain
Company 137 NLRB 1358 (1962) There was no showing of job abandon
ment on the part of any of the strikers
16 See Sec 2(3) of the Act also Foam Rubber City #2 of Florida Inc 167
NLRB 623 (1967)
ary 19 However, later he received a telephone call from
Gamier and was told not to come back to work because
business was real slow While there is some doubt concern-
ing the precise status of Castillo, by his own testimony he
quit before the strike and never actually returned to work
again It is my recommendation that the challenge to his
ballot be sustained and the ballot not be counted
Of the 35 challenged ballots, there remains for resolution
only the ballot of Mary Nolan In my opinion the record is
inadequate at this time to make a determination concern-
ing the status of Mary Nolan and I would recommend that
her challenged ballot not be opened, but laid aside and
only considered if it becomes determinative of the final
election results The record reflects that Mary Nolan per-
formed some general housekeeping duties in the restaurant
on a part-time basis, but in my opinion there is insufficient
evidence to adequately determine whether or not she has a
community of interest with the other employees in the bar-
gaining unit In the event that her ballot should become
determinative, I would recommend that a more complete
investigation be conducted by the Regional Office to de-
termine the exact number of hours worked, amount and
method of being paid, her complete duties and the relation-
ship that her housekeeping duties might have to the wait-
resses and the kitchen employees, and any other relevant
factors necessary to resolve the status of her ballot
THE REMEDY
It having been found that the Respondent has engaged
in certain unfair labor practices, it is recommended that it
cease and desist therefrom and that it take certain affirma-
tive action which is necessary to effectuate the policies of
the Act
It having been found that the Respondent discriminato-
rily discharged Lizabeth Kaska on January 8, 1974, Gael
Menze on January 8, 1974, Shelagh Hill on January 9,
1974, Gayle Nagy on January 17, 1974, and Judith Wel-
don on January 22, 1974, in violation of Section 8(a)(3) and
(1) of the Act, it is recommended that the Respondent offer
the above-named individuals immediate and full reinstate-
ment to their formerjobs or, if theirjobs no longer exist, to
substantially equivalent positions, without prejudice to any
rights and privileges to which they are entitled, and make
them whole for any loss of pay they may have suffered by
reason of the discrimination against them, by making pay-
ment to them of a sum of money equal to the amount they
would have earned from the date of the discrimination to
the date of the offer of reinstatement, less net earnings
during said period Said sum to be computed on a quarter-
ly basis in the manner established by the Board in F W
Woolworth Company, 90 NLRB 289 (1950), and such pay-
ment should include the payment of interest at the rate of
6 percent per annum to be computed in the manner set
forth by the Board in Isis Plumbing & Heating Co, 138
NLRB 716 (1962)
The following named employees having been found to
be unfair labor practice strikers shall, upon an uncondi-
tional offer to return to work, be reinstated to their former
jobs or, if theirjobs no longer exist, to substantially equiva-
lent positions, without prejudice to any rights and privi-
POOR RICHARD'S PUB 1369
leges to which they are entitled, and all employees shall be
made whole for any loss of pay they may suffer from the
date of their unconditional offer to return to work until the
date of reinstatement , by making payment to them of a
sum of money equal to the amount they would have earned
from the date of their offer to return to work to the date of
the reinstatement, less net earnings during said period Da-
vid Anglin, Chris Brady, Tim Brady, Janice Crampton,
Mary C Giles, Susan Globisch, Bill McDonough, Jacob
Michel, Susan Maratti, Sydney Moseley, Kevin Quirk, and
Craig Toms Said sum to be computed on a quarterly basis
in the manner established by the Board in F W Wool
worth Company, supra, and to include the payment of inter-
est at the rate of 6 percent per annum to be computed in
the manner set forth by the Board in Isis Plumbing & Heat
ing Co, supra
It is further recommended that the Respondent preserve
and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records
and reports, timecards, and all other records necessary to
compute the amount of backpay
Upon the foregoing findings of fact, and conclusions of
law, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended
ORDER 17
The Respondent, Poor Richard's Pub, Santa Barbara,
California its officers, agents, successors , and assigns,
shall
I Cease and desist from
(a) Discharging employees because of their concerted
employee activity or interest and activities on behalf of a
union
(b) Promulgating or enforcing no-solicitation rules initi-
ated for the purpose of discriminatorily interfering with,
restraining, or coercing employees in the exercise of their
Section 7 rights
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization , to form, join, or assist the Union, or any
other labor organization, to bargain collectively through
representatives of their own choosing and to engage in con-
certed activities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from any or all
such activities
2 Take the following affirmative action which is neces-
sary to effectuate the policies of the Act
(a) Offer to Lizabeth Kaska, Gael Menze, Shelagh Hill,
Gayle Nagy, and Judith Weldon immediate and full rein-
statement to their former positions or, if such positions no
longer exist , to substantially equivalent positions, without
prejudice to their seniority or other rights and priviledges,
and make each of them whole for any loss of earnings
suffered in the manner set forth in the section above enti-
tled "The Remedy "
(b) Upon receipt of a request for reinstatement from
employees David Anglin, Chris Brady, Tim Brady, Janice
Crampton Mary Giles, Susan Globish, Bill McDonough,
Jacob Michel, Susan Maratti, Sydney Moseley, Kevin
Quirk, and Craig Toms they shall be offered immediate
and full reinstatement to their former or substantially
equivalent jobs, respectively, without prejudice to their se-
niority or other rights and privileges, dismissing , if neces-
sary, any employees hired subsequent to the day the unfair
labor strike began In the manner set forth in "The Reme-
dy," make them whole for any loss of earnings they may
have suffered as a result of Respondent 's failure to rein-
state them after their unconditional offer to return to work
(c) Post at its Santa Barbara restaurant copies of the
attached notice marked "Appendix " 18 Copies of said no-
tice , on forms provided by the Regional Director for Re-
gion 31, after being duly signed by Respondent's author-
ized representatives, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material
(d) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith
IT IS FURTHER ORDERED that Case 31-RC-2736 be severed
from Case 31-CA--4371 and referred to the Regional Di-
rector of Region 31 for disposition of the challenged bal-
lots in the manner set forth herein unless exceptions hereto
are filed with the Board in accordance with Section 102 69
of the Board 's Rules and Regulations, Series 8, as amend-
ed
n 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
18 In the event that the Board s Order is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present their evidence, the National Labor Relations Board
has found that we interfered with the statutory rights of
our employees and we have been directed to post this no-
tice We intend to carry out the order of the Board and
abide by the following
WE WILL NOT discharge or threaten employees with
discharge because of their concerted activity, or inter-
est and activity on behalf of Culinary Alliance and
Bartenders of Santa Barbara and Ventura County, Lo-
cal 498, affiliated with Hotel and Restaurant Employ-
ees and Bartenders International Union, AFL-CIO,
or any other union
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT publish or enforce no-solicitation rules
directed and intended to interfere with , coerce, or re-
strain employees in the exercise of their rights of self-
organization
WE WILL offer reinstatement to employees Lizabeth
Kaska, Gael Menze , Shelagh Hill, Gayle Nagy, and
Judith Weldon We will also make them whole for any
monetary losses suffered because of our discriminato-
ry treatment toward them in the manner prescribed by
the National Labor Relations Board
WE WILL, upon request , offer reemployment to em-
ployees David Anglin , Chris Brady, Tim Brady , Janice
Crampton , Mary C Giles , Susan Globisch , Bill Mc-
Donough , Jacob Michel , Susan Maratti , Sydney
Moseley , Kevin Quirk, and Craig Toms
WE WILL NOT in any manner interfere with , restrain,
or coerce our employees in the exercise of the rights
guaranteed to employees under the National Labor
Relations Act, which are as follows
To engage in self-organization
To form, join , or help unions
To bargain collectively through a representative
of their own choosing
To act together for purposes of collective bargain-
ing or other mutual aid or protection
To refrain from any or all of these things
POOR RICHARD'S PUB-A CALIFORNIA CORPORATION