Red Barn System, Inc.

National Labor Relations Board - Board Decisions

Jun 22, 1976

224 N.L.R.B. 1586 (N.L.R.B. 1976)

1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Red Barn System, Inc and Retail Clerks Local Union
298, affiliated with Retail Clerks International As-
sociation, AFL-CIO Cases 8-CA-8422 and 8-
RC-9367
June 22, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND PENELLO
On February 24, 1975, Administrative Law Judge
Frank H Itkin issued the attached Decision in this
proceeding Thereafter, Respondent filed exceptions
and a supporting brief, and the Charging Party filed
a brief in support of the Administrative Law Judge's
Decision
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 of the Administrative Law Judge and to
adopt his recommended Order, except as modified
below
We find, in agreement with the Administrative
Law Judge, that a remedial bargaining order is war-
ranted in the circumstances herein In so finding,
however, we believe some additional comments are
in order
This is not one of those cases where the unfair
labor practices committed are either so minor in
character or so isolated in nature that no bargaining
order remedy is required On the contrary, the con-
duct engaged in by Respondent can only properly be
described as a massive and blatantly unlawful re-
sponse to employee organizational activities, the im-
pact of which reached all employees in the bargain-
ing unit After being presented with a claim for
recognition by the Union, Respondent immediately
embarked upon a program designed to eliminate em-
ployee support for the Union How successful Re-
spondent was in achieving its objective can perhaps
best be demonstrated by the fact that prior to the
commencement of this unlawful campaign the Union
had valid authorization cards from 20 of the 23 unit
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board s established policy not to over
rule an Administrative Law Judge s resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products Inc 91
NLRB 544 (1950) enfd 188 F 2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his fmding^
employees, yet only 3 months later the Union only
received 3 votes at a Board-conducted election
Respondent's campaign was launched with Store
Manager Hovanic's questioning of 14 to 16 of the 23
unit employees for the purpose of learning "who's
behind this union thing" and what the employees ex-
pected to gain by a union Upon learning the identity
of two of the Union's leading adherents, Hovanic
then subjected the two individuals to a detailed and
patently coercive interrogation It was during these
latter interrogations that Hovanic learned that the
employees wanted a hospitalization insurance pro-
gram Soon thereafter, Hovamc responded by dis-
tributing to all unit employees the "Highlight Sum-
mary" and "Employee Enrollment Application" for
a group life and health benefits program for
Respondent's hourly paid employees and their fami-
lies By this conduct Respondent granted a new ben-
efit to employees, and such action is patently unlaw-
ful The employees would not be likely to miss the
inference that the source of benefits so conferred is
also the source from which all future benefits must
flow Also, and perhaps more important from the
standpoint of a remedy, the unlawful effects of this
conduct cannot easily be erased for the benefit re-
mains in effect and, if another election is held, it will
serve as a constant reminder to employees of the
Respondent's use of economic weapons to defeat the
Union
Nor is this by any means the only unlawful con-
duct which would have a lingering effect The dis-
criminatory delay in rehiring employee D'Amato and
the circumstances which prompted her rehire are not
likely to be forgotten by the employees D'Amato,
who had been identified as one of the union ringlead-
ers during Respondent's unlawful interrogation of its
employees, quit herjob after being criticized by man-
agement officials Within an hour D'Amato recon-
sidered her decision and asked for her job back She
explained to Store Manager Hovanic that she acted
impulsively and asked if she really had to quit Ho-
vanic replied "Under the circumstances, yes "
D'Amato then asked, "[W]hat circumstances," and
Hovanic explained "[T]he circumstances regarding
the Union and the hearing " 2 The following day, Ho-
vanic told D'Amato that the only way he would be
able to rehire her was if the Union lost the election
After reflecting on this comment for several days,
D'Amato returned to the store to tell Hovanic that
she wanted to have nothing more to do with the
Union and once again asked if she could be hired
She was rehired that same day
As one might expect in such circumstances, D'Am-
2 D Amato had only a week earlier testified as a witness for the Union at
a Board conducted hearing on the Union s representation petition
224 NLRB No 207
RED BARN SYSTEM, INC 1587
ato shifted her allegiance to Respondent and became
active on its behalf After her rehire, D'Amato tape
recorded the discussion at a union meeting and re-
played the tape for Hovanic 4 days before the elec-
tion D'Amato also served as the Company's observ-
er at the Board-conducted representation election
and, after the election, was promoted to the position
of "Relief Manager "
The unfair labor practices committed against
D'Amato would of necessity have a deep and lasting
effect on the other employees From the employees'
viewpoint, the lesson to be learned was that the Re-
spondent would show no leniency to those who sup-
ported the Umon, but those who renounced it and
pledged their allegiance to Respondent would be re-
warded Having witnessed the fact that one of the
leading union activists was unable to withstand
Respondent's unlawful pressures, it is unlikely that a
less committed employee would be willing to accept
the risk that a decision to support the Union would
not result in retaliation from Respondent Indeed,
D'Amato's continued presence at the store would in-
sure that the painfully learned lesson as to how Re-
spondent treats supporters of the Union would not
be forgotten Accordingly, the unfair labor practices
committed with respect to D'Amato necessarily must
be viewed as having a continuing impact on the em-
ployees' exercise of their Section 7 rights under our
Act
Just as D'Amato's job hinged on whether she was
willing to forgo her union activities, other employees
were faced with a similar election by reason of
Respondent's unlawful threat to impose more rigid
working hours by discontinuing the existing policy of
allowing the employees to leave work 10 minutes ear-
ly or to report to work 10 minutes late This was no
small matter because many of the unit employees
worked on a part-time basis for the Respondent
while pursuing their education as full-time students
at a nearby university The policy of granting stu-
dents 10 minutes leeway in reporting or leaving was a
recognition of the difficulty the students experienced
in attempting to balance their class and work sched-
ules If Respondent had withdrawn this condition, as
it threatened to do, many students would have been
forced to choose between work and class commit-
ments Obviously, this threatened change, had it
been carried out, would have had a substantial im-
pact on the employees
We must recognize that Respondent's work force
was and is now a group which contains a large num-
ber of students and is subject to a rapid turnover As
such, the work force is particularly vulnerable to the
type of unlawful economic pressures employed by
Respondent here Furthermore, it should also be rec-
ognized that employees whose employment is to be
for a limited period of time can have their desire for
union representation thwarted simply by the realiza-
tion that their employment will have ended long be-
fore the Respondent can be legally forced to sit down
and bargain with the duly authorized representative
of its employees Just in case this was not clear to all
the employees, however, Respondent held a series of
meetings with the employees to drive this point
home At these meetings employees were told that
Respondent "was so powerful that the Union
couldn't make them do anything [or] agree to
anything [but Respondent would just] sit down
and bargain in good faith [which] might be tied up in
court for a long time and [the employees] wouldn't
benefit from it because of the great turnover " We
find that the remarks in question were designed to
convince the employees that the selection of a bar-
gaining representative would be a futile act and that
by engaging in such conduct, Respondent seriously
interfered with its employees' right to exercise their
Section 7 rights under our Act The remarks in ques-
tion merely give voice to Respondent's determination
to use whatever means were necessary, be they lawful
or unlawful, to keep the Union out of its store Such
fixed determination is not likely to be overcome by a
conventional cease-and-desist remedy
Therefore, we agree with the Administrative Law
Judge that a bargaining order is warranted to remedy
the extensive and pervasive unfair labor practices
committed by Respondent
We further find that Respondent's refusal to rec-
ognize and bargain with the Union on and after Jr n-
uary 16, 1974, in the circumstances here, violated
Section 8(a)(5) of the Act Although the consolidated
complaint did not specifically allege an 8(a)(5) viola-
tion, we assume that this failure resulted from our
decision in Steel-Fab, Inc, 212 NLRB 169 (1974),
which was modified in Trading Port, Inc, 219 NLRB
298 (1975) In any event, the record discloses that the
issue of Respondent's obligation to bargain was fully
litigated at the hearing Thus, the complaint alleged,
inter alia, that the Umon has been and is the exclu-
sive representative of the employees in the unit found
appropriate herein, and that since January 16, 1974,
and continuing to date, the Union has requested rec-
ognition and bargaining with Respondent In sup-
port of this allegation, as well as the General
Counsel's theory that a remedial bargaining order is
necessary, the record contains the Union's letter of
January 14, 1974, demanding recognition, Re-
spondent's letter of January 21, 1974, declining
recognition, the Union's petition for an election, dat-
ed January 31, 1974, and the authorization cards
signed by 20 of Respondent's 23 employees in the
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate unit Accordingly, all of the elements
necessary to prove a violation of Section 8(a)(5) of
the Act were fully litigated and established in con-
nection with the General Counsel's theory that a bar-
gaining order was necessary to remedy the alleged
unfair labor practices 3 Since the record also estab-
lishes that on January 16,- 1974, Respondent em-
barked upon its course of unfair labor practices, we
find that as of that date Respondent violated Section
8(a)(5) of the Act by refusing to recognize and bar-
gain with the Union as the representative of
Respondent's employees 4
AMENDED CONCLUSIONS OF LAW
In accord with our above findings, we adopt the
Administrative Law Judge's Conclusions of Law
with the following modifications
1 Substitute the following for Conclusion of Law
6
"6 At all times material herein, since January 16,
1974, the Union has been the exclusive bargaining
representative of the employees in the above-de-
scribed unit within the meaning of Section 9(a) of the
Act "
2 Insert the following as Conclusion of Law 7 and
renumber the remaining Conclusions of Law accord-
ingly
"7 By refusing, since January 16, 1974, and at all
times thereafter, to recognize and bargain with the
Union as the exclusive representative of its employ-
ees in the appropriate unit set out above, Respondent
has engaged, and is engaging, in unfair labor practic-
es within the meaning of Section 8(a)(5) of the Act "
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 , as modified
below, and hereby orders that Respondent Red Barn
System, Inc, Youngstown , Ohio, its officers , agents,
successors, and assigns , shall take the action set forth
in the said recommended Order , as so modified
1 Insert the following as paragraph 1(g) and relet-
ter the subsequent paragraph accordingly
"(g) Refusing to bargain collectively with Retail
Clerks Local Union 298, affiliated with Retail Clerks
International Association , AFL-CIO , as the exclu-
sive bargaining representative of the employees in
the following unit
s Schwab Foods Inc d/b/a Scott s IGA Foodhner 223 NLRB 394 (1976)
4 Trading Port Inc supra
All full-time and regular part-time employees at
the Red Barn System store at 233 Lincoln Ave-
nue, Youngstown, Ohio, excluding all office
clerical employees and professional employees,
guards, and supervisors as defined in the Act "
2 Substitute the following for paragraph 2(e)
"(e) Notify the Regional Director for Region 8, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with "
3 Substitute the attached notice 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
After a hearing at which both sides had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that Red Barn System,
Inc, has violated the National Labor Relations Act
and ordered us to post this notice We therefore noti-
fy you that
WE WILL NOT coercively interrogate our em-
ployees about employee union activities
WE WILL NOT threaten our employees with
more rigid working hours or other reprisals if
they choose union representation
WE WILL NOT tell our employees that it will be
futile for them to choose union representation
WE WILL NOT tell our employees that their
hours of work have been reduced because of
their union activities
WE WILL NOT make available to our employees
a hospitalization insurance program or other-
wise confer benefits upon them in order to dis-
courage their union activities
WE WILL NOT discourage membership in Retail
Clerks Local Union 298, affiliated with Retail
Clerks International Association, AFL-CIO, or
other employee protected activities, by discrimi-
natorily delaying the rehiring of employees, or
by otherwise discriminating against them in re-
gard to hire and tenure of employment or in re-
gard to any other condition of employment, be-
cause of their union support, affiliation, or
protected concerted activities
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
join or assist the above-named Union, or any
RED BARN SYSTEM , INC 1589
other labor organization, to bargain collectively
through representatives of their own choosing
and to engage in other protected concerted ac-
tivities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any or all such activities
WE WILL NOT refuse to bargain collectively
with Retail Clerks Local Union 298, affiliated
with Retail Clerks International Association,
AFL-CIO, as the exclusive bargaining represen-
tative of the employees in the unit described be-
low
WE WILL, upon request, bargain collectively
with Retail Clerks Local Union 298, affiliated
with Retail Clerks International Association,
AFL-CIO, as the exclusive bargaining represen-
tative in the unit described below and, if an un-
derstandmg is reached, embody such under-
standing in a signed agreement The bargaining
unit is
All full-time and regular part-time employees
at the Red Barn System store at 233 Lincoln
Avenue, Youngstown, Ohio, excluding all of-
fice clerical employees and professional em-
ployees, guards, and supervisors as defined in
the Act
WE WILL make employee Francesca D'Amato
whole for any loss of earnings she may have suf-
fered as a result of our discrimination, with in-
terest at the rate of 6 percent per annum
RED BARN SYSTEM, INC
DECISION
FRANK H ITKIN, Administrative Law Judge These con-
solidated cases were heard before me on October 21, 22,
and 23, 1974, at Youngstown, Ohio Unfair labor practice
charges were filed by the Union on June 7 and were
amended on August 22, 1974, in Case 8-CA-8422 A sup-
plemental decision and order directing a hearing issued by
the Acting Regional Director for Region 8 of the National
Labor Relations Board on August 22, 1974, in Case 8-RC-
9367, directing a hearing on certain objections to conduct
affecting the outcome of an election in the related repre-
sentation proceeding An order consolidating cases, com-
plaint, and notice of hearing issued on August 29, 1974,
consolidating for the purposes of hearing , ruling, and deci-
sion the issues raised in unfair labor practice proceeding
Case 8-CA-8422 with certain issues raised in representa-
tion proceeding Case 8-RC-9367 The principal issues
raised in the unfair labor practice case are whether Re-
spondent Company violated Section 8(a)(1) and (3) of the
National Labor Relations Act by coercively interrogating
and threatening its employees , by announcing and grant-
ing wage increases to them, by providing for them a hospi-
talization and life insurance plan, by telling them that it
would be futile for the employees to select the Union as
their collective-bargaining representative , by refusing to
rehire former employee Francesca D'Amato from about
February 21 to about February 28, 1974, in order to dis-
courage employees from supporting the Union, and wheth-
er, under the circumstances present here , a bargaining or-
der is an appropriate remedy The principal issues raised in
objections in the related representation case are whether
the Company carried on an "intensified campaign of coer-
cion designed to chill the employees ' interest in Union rep-
resentation and to undermine the employees ' allegiance to
their bargaining representative " and whether the Company
"threatened employees that a Union election victory would
result in a loss of rights and privileges "
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed by
counsel , I make the following findings of fact and conclu-
sions of law
FINDINGS OF FACT
I INTRODUCTION, THE LINCOLN AVENUE RESTAURANT
Respondent Company, a New York corporation with its
principal place of business in McLean, Virginia , is engaged
in the retail fast-food business , operating restaurants
throughout the United States Respondent receives annual-
ly gross revenues in excess of $500,000 from the operation
of its restaurants in the Youngstown , Ohio, area Respon-
dent also receives goods at its Youngstown , Ohio, area res-
taurants valued in excess of $2,000, which goods are trans-
ported directly or indirectly from outside the State of Ohio
Accordingly, I find and conclude that Respondent Compa-
ny is an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act And , I find and
conclude that the Charging Party Union is a labor organi-
zation within the meaning of Section 2(5) of the Act In
addition, it is undisputed and I find and conclude that
Thomas L Huston is area supervisor for Respondent's
Youngstown area restaurants , that Michael J Hovanic is
manager of Respondent's restaurant at 223 Lincoln Ave-
nue in Youngstown , and that both Huston and Hovanic
are agents and supervisors of Respondent within the mean-
ing of Section 2(11) of the Act
The unfair labor practice complaint alleges that a unit
appropriate for collective -bargaining purposes consists of
Respondent 's restaurant employees at 223 Lincoln Ave,
Youngstown, Ohio, as described below
All full-time and regular part-time employees, ex-
cluding all office clerical employees and professional
employees , guards and supervisors as defined in the
Act
Respondent 's answer alleges "that the only unit appropri-
ate for purposes of collective bargaining is a multi-restau-
rant unit comprised of all restaurants in the Youngstown,
Ohio, geographic area " The Board 's Regional Director for
Region 8, in his Decision and Direction of Election in Case
8-RC-9367, dated March 6, 1974, determined that the Lin-
coln Avenue Restaurant unit, as alleged above , is appropri-
ate for purposes of collective bargaining within the mean-
1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing of Section 9(b) of the Act Respondent thereafter re-
quested review by the Board of the Regional Director's
determination The Board denied the Company's request
for review, "as it raises no substantial issues warranting
review "
Respondent Company, in the instant proceeding, makes
no attempt to introduce any newly discovered or previous-
ly unavailable evidence regarding the appropriateness of
the unit Further, Respondent does not claim any special
circumstances which would warrant a reexamination by
the Board of the unit determination in Case 8-RC-9367
Respondent is therefore precluded from relitigatmg this is-
sue and the above unit, as alleged, is found appropriate for
collective-bargaining purposes See Section 102 67 (f),
Board's Rules and Regulations, Champa Linen Service Co,
177 NLRB 798, footnote 2 (1969), enfd 437 F 2d 1259
(C A 10, 1971), and The Hertz Corporation, 190 NLRB
665, 666 (1971)
II THE UNION ATTEMPTS TO ORGANIZE THE COMPANY'S LINCOLN
AVENUE RESTAURANT EMPLOYEES, THE COMPANY'S CONDUCT IN
RESPONSE TO THE UNION'S ORGANIZATIONAL EFFORT
on January 16, 1974, he took the letter to the office of Area
Supervisor Tom Huston Hovanic recalled
I [Hovanic] dust gave it to him [Huston] to read and
then, after he read it, he asked me to find out who was
in charge and what they wanted and how many people
were involved, if possible
Hovanic, as he testified, "went to the front counter where
most of the employees were working at that time and [Ho-
vanic] said, `Tom [Huston] wants to know who's behind
this Union thing "' According to Hovanic, employees
Mary Senko and Audrey Cook said "we are in charge of
it " Hovanic then instructed the two employees to "come
with me and [they] went upstairs " 3
Hovanic further testified
When we went upstairs, I [Hovanic] said, I believe,
to Mary Senko, you know, "I have to go through the
motions so that they [the Company] don't know that I
[Hovanic] was involved in this Who do you want me
[Hovanic] to say was in charge" At that time, she
[Senko] said, "Well, I guess you can say that I am,"
and Audrey Cook said that she was, too, she was a
ringleader also and then volunteered Fran D'Amato's
name 4
A The Union Requests Recognition and Files A
Representation Petition
The Union, by letter dated January 14, 1974, notified
Respondent's Restaurant Manager Michael Hovanic that
it "has been designated collective bargaining representative
by the majority of your employees working at your store
located at 223 Lincoln Ave, Youngstown, Ohio " The
Union requested, "within the next week to ten days, a
meeting with you for the purpose of negotiating a contract
covering rates of pay, hours of work and all other condi-
tions of employment" for the store employees This letter
was received by Hovanic on January 16, 1974 I Respon-
dent Company, by letter dated January 21, 1974, refused
recognition because "the unit requested is inappropriate"
and the Company did "not believe a majority of [its] em-
ployees in an appropriate unit have properly designated
[the Union] as bargaining agent" Thereafter, on January
31, 1974, the Union filed a representation petition with the
Regional Director 2
B Restaurant Manager Hovanic Receives the Union's
Request for Recognition and, at the Request of Area
Supervisor Huston Questions Employees
Restaurant Manager Hovanic testified that, upon receipt
of the Union's letter requesting recognition and bargaining
i By January 16 1974 the Union had secured authorization cards from
20 out of 23 unit employees By January 18 1974 the Union had secured
authorization cards from 21 out of 23 unit employees The evidence pertain
ing to the Union s majority status is discussed in sec III D infra
On March 6 1974 the Regional Director issued his Decision and Direc
tion of Election in the representation case An election was conducted on
April 18 1974 The tally of ballots shows that there were approximately 18
eligible voters 17 cast ballots 3 ballots were cast for petitioner and 14
against On April 23 1974 the Union filed timely objections to conduct
affecting the results of the election
During Hovanic's discussion with the two employees, Ho-
vanic, as he testified, "asked them what they expected to
gain by a Union" and, "at that time, they presented a list of
demands " The employees "wanted better wages, better
working conditions and hospitalization " Hovanic, af-
ter listening to and noting their demands, stated "Okay I
am going to take these back over to Tom [Huston] Let's
get back to work " Hovanic then "gave the list of demands
to Tom Huston " 5
C The Events Attending the Refusal to Rehire Employee
D'Amato
Francesca D'Amato testified that she "was one of the
people that had originally planned on starting the
Union " She attended union meetings, signed a union card
and solicited her coworkers to sign union cards D'Amato
testified on behalf of the Union in the representation pro-
ceeding before the Board on February 14 and 15, 1974
3 Senko and Cook as discussed in sec III D infra had signed Union
cards on January 11 and 13 1974
4 D Amato as discussed infra had signed a union card on January 11 and
13 1974 Hovanic s reference in the above quoted testimony to being in
volved in this concerns his presence at a union meeting held on January 11
1974 The evidence pertaining to Hovanic s attendance at the January I I
meeting will be discussed in sec III D infra with related evidence concern
in^ the Union s majority status
The above testimony of Hovanic is substantiated in large part by the
testimony of employees Senko and Cook Senko also credibly recalled that
Hovanic told the two employees that Tom Huston wanted to know who
was the ringleaders of the Union Senko explained
at first I [Senko] didn t want to tell him but then I said I don t
care I in a ringleader [Cook] said she was a ringleader
D Amato was also named as a leader by the employees The two employees
were asked what our gripes were They responded that we wanted
better pay overtime pay seniority arrangements hospitalization
I have credited the testimony of Hovanic as recited above His testimony
is substantiated in large part by the credible testimony of employees Cook
and Senko and upon the entire record impresses me as a reliable and full
account of this incident
RED BARN SYSTEM, INC 1591
Subsequently, on Thursday, February 21, 1974, D'Amato
"quit [her] job" after having been faulted for "causing
noise" in the restaurant At the time, D'Amato informed
Hovanic that she "officially quit," and "he said fine and
turned around and walked back to the kitchen " However,
shortly after quitting on that same day, D'Amato reconsid-
ered her decision D'Amato testified
I [D'Amato] went back and told Mike [Hovamc] I
wanted to talk to him, so he went back in the side
lobby, and I told him that I wasn't serious in what I
had said, and if it meant that I really had to quit, and
he said, "Under the circumstances, yes " I asked him
what circumstances, and he said, the circumstances
regarding the Union and the hearing
D'Amato further testified
well, I [D'Amato] asked [Hovanic] what circum-
stances and he explained that if he were to hire me
[D'Amato] back, and if the Union were to find out,
that they could sue us on the grounds of conspiracy
D'Amato recalled that Hovanic said, in effect, "that if he
rehired [her] under those conditions, employees would be-
lieve that it was under the condition [she] campaigned
against the Union," and he "didn't want people to believe
that a deal had been made "
Later that same day, Thursday, February 21, D'Amato,
as she testified, again spoke to Hovanic about her employ-
ment Coworker Audrey Cook was present D'Amato testi-
fied
Audrey Cook stated that if getting my [D'Amato's] job
back meant for her [Cook] to stop [sic] campaigning
against the Union, that she would Mike [Hovan-
ic] said that her campaigning against the Union had
nothing to do with my [D'Amato] getting [my] job
back He [Hovanic] said he had never wanted me
[D'Amato] to quit in the first place
Hovanic then told D'Amato "that he would talk to Tom
[Huston] the following Friday morning [February 22] and
that he would let [D'Amato] know what Tom had said
about rehiring [D'Amato] " D'Amato telephoned Hovanic
on Friday, February 22 D'Amato testified
He [Hovanic] told [D'Amato] that he had talked to
Tom [Huston] that morning and that the only way he
would be able to hire me back was if the secret ballot
came in and the Union got voted out He told me
to keep my uniforms because nothing was official
6 Store Manager Hovanic testified
well after Fran [D Amato] had quit and she had come back to me
[Hovan+c] she wanted to talk to me and we talked at one period by
ourselves then she went back into the side lobby and a few minutes
later she came over to the desk where I was sitting and she wanted to
talk to me At that time, Audrey Cook was with her and we went back
out on the back steps so we wouldn t be bothered by any of the em
ployees and Fran asked for her job back At that time Audrey Cook
said to me if it meant that Fran would be rehired that she [Cook]
would be willing to give up her union activities and tell [Union Repre
sentative] Marconi to forget it all
I told her [Cook] that my decision as to Fran s rehiring would be
based not on her union activities or Fran s union activities that that
would have nothing to do with it
D'Amato, as she testified, next spoke to Hovanic on
Thursday, February 28, 1974 D'Amato explained
I [D'Amato] told him [Hovanic] that I had gone up to
the Union hall that I had talked to the people
there, and I told him I was very sincere with them, I
was very honest with them, and I told them I wanted
my job back
Hovamc then told D'Amato that she would be able "to
return the following Monday " 7 D'Amato also recalled "I
think I told him [Hovanic] I wanted to have nothing more
to do with the Unions, I think " D'Amato resumed work
on Monday, March 4, 1974, as "countergirl " About 1 to 2
months later, D'Amato was promoted to "relief manager "
D'Amato placed her promotion "after the election," which
was conducted by the Board on April 18, 1974 D'Amato
had served as "an observer" for the Company at the elec-
tion And, as Manager Hovanic acknowledged, on April
14, 1974, 4 days before the election, D'Amato had attended
a union meeting, tape recorded what was said at the union
meeting and replayed the tape to Hovanic later that same
evening8
D Statements by Huston and Hovamc to Employees
Employee Roxanne Corll testified that Area Supervisor
Huston "called meetings" of the unit employees on April 9
and 16, 1974 Corll recalled that
Mr Huston was telling us basically about the Union,
and that if the Union got in, they would set down and
bargain in good faith, but they didn't have to agree to
anything, and that it might be tied up in court for a
long time, and we wouldn't benefit from it because of
the great turnover, and we would probably be gone
And he also said that we have to go indirectly through
the Union to get our problems solved, and that now
we can just sit down and talk to Mike [Hovanic] and
Tom [Huston] and try to get our problems solved that
way And he said that we would have more rigid work
hours We wouldn't be allowed to leave 10 minutes
early for class if we have a class like at 1 00, we
wouldn't leave at 10 to, like we do now And he said
that we really weren't making enough money to pay
the dues, you know
Employee Audrey Cook also attended the April meet-
ings She recalled, in part, as follows
He [Huston] said that if we got a Union in that we
might not be able to leave work early any more, and
since most of us were going to school at that time, it
was important, because they would let us have 10 min-
utes before class
7 D Amato recalled that she apprised Hovanic that the Union wasn t
going to sue the Company and that it was okay for him to hire [her] back
S I credit the testimony of D Amato as stated above She is presently
employed by the Company as Relief Manager Her testimony as quoted
above is substantiated in part by the testimony of Hovanic And upon the
record before me I am persuaded that her account of the above events is
trustworthy Insofar as the testimony of Hovanic differs with the above
stated testimony I am persuaded that the above testimony is more reliable
and trustworthy
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He informed us that we were going to have a wage
increase starting in May, I believe I think it was in
May that we were going to go up to $1 90 an hour, and
then after that we were going to have another one that
was going to take us up to $2 an hour, and he said that
the Servomation was so powerful of a company, of an
organization, that the Umon couldn't make them do
anything, and also, they would sit down and bargain
in good faith, that this could be tied up in court for so
long that probably none of us would ever benefit from
it
Employee Cook recalled that Hovanic also spoke at these
meetings "and he said basically the same thing that Tom
Huston said "
Employee Cynthia Merrell testified that about April 2,
1974, Hovanic stated to the employee
He [Hovanic] spoke to me about since I did
know the advantages of having a Union in the store,
he was going to tell me maybe some of the disadvan-
tages of having the Union One he stated, it was that if
the Umon came in, he was letting employees off, like
if they had a class at a certain hour, he was letting
them off ten minutes before that hour so they could
make the class, and he stated if the Union got in, he
would have to go strictly by the clock Also he said
that many employees were only working on a part-
time basis, and we wouldn't be able to afford to pay
maybe the Union dues that you have to pay to the
Union a month, and if we should cause a strike, which
would shut down the store, as he thought it would, he
would be able to replace us and place us on a waiting
list of one year, which he could call us back if he
needed us
Employee Andrea Kulik testified that during March and
April 1974, she asked Hovanic "why he was cutting work
hours" and "he replied that it was because of Union activi-
ty " Employee Cook testified that about April 15 or 16,
1974, she asked Hovanic "why I [Cook] couldn't work Sat-
urdays any more " Cook recalled
I asked Michael [Hovanic] why my hours had been cut
and he said it was partly due to my school activities or
my schoolwork and partly due to my Union activities I
9 Employee Senko recalled coworker Cook asking about her hours being
cut and Andrea Kulik s Senko recalled we were told that the
hours were cut because of fluctuation Burger King was opening up and
took away our business When asked by counsel for Respondent
Did you ever hear Mr Hovanic tell Audrey Cook or Andrea Kulik that
their hours were cut because of their Union involvement9 Senko answered
no sir
I am however persuaded that the testimony of Corll Cook, Merrell and
Kulik as quoted above is reliable truthful and accurate The testimony of
Corll and Cook with respect to the April meetings is in part mutually coy
roborative The testimony of Merrell concerns in large part like and related
statements made to her by Hovanic And the testimony of Kuhk and Cook
with respect to Hovanic s separate statements to them concerns related con
duct in his opposition to the organizational effort Assessed in the context of
the Company s response to the organizational effort and relying upon de
meanor I find the above quoted testimony to be credible and trustworthy
Insofar as the testimony of Huston and Hovanic differs with the above
testimony I do not credit their testimony Huston was at times evasive and
E Restaurant Manager Hovanic Provides a Hospitalization
and Life Insurance Program for Employees
Hovamc, who had been manager of Respondent's Lin-
coln Avenue Restaurant since August 1973, testified that
he first became "aware of any hospitalization or life insur-
ance programs that were available for Red Barn hourly
employees" during late January 1974 Hovanic assertedly
"saw them [the insurance application forms ] laying on the
table in Tom Huston's office " 10 Hovanic thereupon noti-
fied the unit employees of the existence of these programs
Hovanic started handing out these forms to unit employees
during late January or early February 1974 As he testified
"I believe the first date anybody signed one in our store, it
was either the 2nd of February or somewhere around that
time "
Area Supervisor Huston testified , in part, as follows
Q (By Mr Collins) Were you employed as area su-
pervisor, Mr Huston , in 1973 , while this complement
of stores including those under your supervision were
owned by an Interstate Company?
A Yes
Q And you were, were you not, in the mid-1973-
there was an acquisition of that Interstate Company
and those Red Barn units by the Servomation Compa-
ny
A Right
Q Were you aware at the time of the acquisition
that there was an insurance program covering those
Servomation Red Barn units that already were part of
Servomation?
A Yes
Q Were you made aware subsequently of the con-
tents of this existing plan as it would apply after the
acquisition or the merger of Interstate into Servoma-
tion
A Yes
Q When approximately did you find out about the
hospitalization program?
A I am not exactly certain about the exact time I
think it was in December I received the application
JUDGE ITKIN December of 19739
THE WITNESS Right
Q (By Mr Collins) By application are you talking
about the one-page form?
A Yes
Q I will hand you what has been marked as Gener-
al Counsel's Exhibit No 10 for identification Was
that the form you were made aware of some time in
December 1973?
A Yes, it is
Q When did you first see this form, Mr Huston9
A Well, a supply of those were sent to my office
Q Did you examine it or review it in any way?
vague in his testimony Hovanic as noted admittedly had interrogated em
ployees at the request of Huston and relayed the results of his interrogation
to Huston Hovanic also had reviewed with employee D Amato a tape re
cording of a union meeting Under all the circumstances I do not regard the
assertions of Huston and Hovanic insofar as they conflict with the above
testimony as trustworthy
10 Hovanic identified the forms as G C Exh 10
RED BARN SYSTEM, INC 1593
A Yes, I did I looked it over and I wasn't satisfied
with the coverage because it wasn't the same as what
we had with Interstate Restaurant Systems
Q Did you take any action because of this belief9
A Well, at that point I took those applications and
put them in my desk drawer I didn't do anything with
them We were in a transitional period when we were
merging with Red Barn System Things were being
changed and formulated, there were a lot of policies
being changed from week to week, and there was a
definite lack of specific direction at that point and I
was hoping that since everyone seemed to be in mutu-
al agreement that this wasn't too fantastic a policy, we
would have it revised in order that I wouldn't have to
institute it 11
Area Supervisor Huston acknowledged that initially he
"held them [the insurance applications] back purposely"
from the unit employees I do not credit Huston's assertion
that he first "circulated all these forms to the stores in
Youngstown" "sometime in January, the first part of Janu-
ary ," as a result of employee inquiries which were
related to him by the manager of another restaurant 12 I am
persuaded from the evidence of record, as discussed in sec-
tion III, B , infra, that Respondent first made these insur-
ance programs available to unit employees during late Jan-
uary and early February 1974, in an attempt to satisfy unit
employee complaints and demands which were revealed to
management as a result of its interrogation of employees
Senko and Cook on January 16, 197413
The parties stipulated
I The Lincoln Avenue Restaurant Youngstown Ohio and the other
restaurants in Tom Huston s area until June 30 1973 were owned by
Interstate Restaurant Systems Inc On July 1 1973 Interstate was
merged into the Red Barn Division of Servomation Corp At that
time there were 48 Interstate Restaurants These 48 restaurants have
continuously operated as part of Servomation since the merger until
the current time The hospitalization and life insurance policy made
available to the unit employees of the Lincoln Avenue restaurant in
early 1974 through distribution of forms identical to G C Ex 10 is
the Servomation Red Barn Division policy that had been available to
Servomation Red Barn employees prior to July 1 1973 These Servo
matron Red Barn forms were not distributed to former Interstate
restaurants prior to the beginning of October 1973
2 All applications from employees of former Interstate restaurants for
participation in the Servomation Red Barn life insurance and hospi
talization policy dated during the period from the merger through
January 16, 1974 were from employees of the following restaurants
a Lorain Road #208
b E Cuyahoga Falls Avenue #287
c Broadmay #264
d E Main Street , Ravenna #431
e Main Street , Buffalo NY #354
f Kensington #158
g South Park, Hamburg NY #306
h State Road #81
12 Huston attempted to place this distribution during the first part of
January The Union s demand for recognition as noted was received
by the Company on January 16 Huston however acknowledged
In fact I can t say exactly when I distributed them
In his preheanng affidavit Huston stated that the forms were distributed
about the end of January 1974
13 Hilda Sorriento manager of Respondents Lincoln Knolls Red Barn
facility for about 4 years, claimed that she telephoned Huston in response to
employee inquiries at her store concerning what hospitalization the Com
pany had Sorriento placed this incident about the last week in Janu
F Announcements and Grants of Wage Increases
The unfair labor practice complaint alleges that about
January 19 and April 14, 1974, Respondent unlawfully
granted wage increases to the Lincoln Avenue unit employ-
ees Respondent, in its answer, "admits that on or about
January 19, 1974, wage increases were granted to its em-
ployees at the Respondent's restaurants in the Youngstown
area" pursuant to the Ohio Minimum Wage Law and "that
on or about April 14, 1974, wage increases were granted to
its employees employed at Respondent's restaurants in the
Youngstown area" pursuant to the Federal Minimum
Wage Law
The parties stipulated
Those hourly employees employed in Respondent's
Ohio restaurants covered by the Ohio Minimum Wage
Law, effective January 1, 1974, who at the time of
such increases were being paid a wage rate less than
$1 60 per hour, received a wage increase to $1 60 per
hour, effective either the bi-weekly pay period ending
January 12, 1974, or that ending January 19, 1974,
depending upon which of those pay periods was then
in effect at each such restaurant
Those hourly employees employed in Respondent's
restaurants covered by the Federal Minimum Wage
Law, effective May 1, 1974, who were being paid less
than $1 90 per hour at the time of such increases, ex-
cept those employed in New York and California,
where higher State minimum wage rates were in effect,
received wage increases to $1 90 per hour effective
either the bi-weekly pay period ending April 27, 1974,
or that ending May 4, 1974, depending upon which of
these pay periods was then in effect at each such res-
taurant
The parties further stipulated
At all relevant times, Tom Huston has had supervi-
sory authority, as area supervisor, over the following
eight restaurants Belmont, Boardman, McCartney
Road, Mahoning Avenue (Youngstown), Lincoln
Avenue, Hubbard, Poland, Market Street (Youngs-
town) Prior to the wage increase effective pay period
ending January 19, 1974, four of these eight area res-
taurants (McCartney Road, Mahonmg Avenue, Hub-
bard and Market) paid their employees at $1 60 per
hour or above The remaining four area restaurants
paid some employees below $1 60 per hour Employ-
ees at three of the eight area restaurants (Boardman,
Lincoln Avenue and Poland) were raised to a $1 60
per hour minimum in the pay period ending January
19, 1974 Employees at the eighth and final area res-
taurant (Belmont) were raised to a $1 60 per hour min-
imum in the pay period ending March 2, 1974 As of
ary 1974 Sorriento claimed that prior to her conversation with a Lincoln
Knolls store employee she had no knowledge that there was a hospitaliza
tion plan in effect except through hearsay from different people During
her 4 years as store manager she assertedly never asked whether they had
a hospitalization plan The testimony of Sorriento and Huston is vague and
unclear in this respect And upon the entire record I do not credit the
testimony of Huston and Sorriento pertaining to the Company s alleged
reason for the distribution of these forms to unit employees during late
January and early February 1974
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 19, 1974, the Belmont restaurant was in
Trumbull County and therefore was not covered by
[the State law]
At all relevant times, there has been no systemwide
corporate policy of the Respondent concerning the
grant of the wage adjustments to individual employees
at a restaurant at the same time or subsequent to the
institution there of a minimum wage rate At all rele-
vant times, the decision to grant any such wage adjust-
ments in restaurants in Tom Huston's area were effec-
tively made by Tom Huston All employees of the
Lincoln Avenue restaurant who received increases ef-
fective the pay period ending March 20, 1974, had
been at or above $1 60 per hour prior to the pay peri-
od ending January 19, 1974 All employees of the Lin-
coln Avenue restaurant who received increases for the
pay period ending May 25, 1974, were above $1 60 per
hour prior to the pay period ending April 27, 1974,
with the sole exception of Fran D'Amato All such
employees who were above $1 60 per hour prior to the
pay period ending April 27, 1974 (and were still em-
ployed there during the pay period ending May 25,
1974) received increases effective pay period ending
May 25, 1974, with the sole exception of employee C
Girts
The hourly rates for unit employees during biweekly pay
periods ending January 5, January 19, March 2, March 30,
April 27, and May 25, 1974, are stipulated in G C Exh
12 14
III DISCUSSION
As the credible evidence summarized, supra, shows, the
Union initiated its organizational campaign at Re-
spondent's Lincoln Avenue restaurant about January
11, 1974 By January 16, the Union had secured signed
authorizations from 20 out of 23 unit employees On that
same day, January 16, the Company received the Union's
written request for recognition The Company rejected the
Union's request for recognition and engaged in the follow-
ing conduct
A Interrogation, Threats, and Delay in Rehiring Employee
D'Amato
Upon receipt of the Union's request for recognition on
January 16, Store Manager Hovanic took the request to
Area Supervisor Huston Huston asked Hovanic "to find
out who was in charge and what they wanted and how
many people were involved, if possible " Hovanic then
went to the front counter "where most of the employees
were working" and said "Tom [Huston] wants to know
who's behind this Union thing" Employees Senko and
14 General Counsel moves to amend the transcript His motion is dated
December 4 1974 Respondent, in his reply dated December 7 1974 oppos
es General Counsel only with respect to two requested changes in the tran
script General Counsels motion insofar as it is unopposed is granted I
am however persuaded from the record and contentions of Respondent
that the two disputed requested changes are not proper and should not be
made
Cook acknowledged that they "are in charge of it " Hovan-
ic instructed the two employees to "come with me and
[they] went upstairs " Hovanic, as discussed infra, had at-
tended the first union meeting on January 11 Hovanic, in
interrogating the two employees on January 16, explained
I have to go through the motions so that they [the
Company] don't know that I was involved in this
Who do you want me to say was in charge"
Senko and Cook agreed that Hovanic could name them as
"ringleaders " The two employees also volunteered the
name of coworker D'Amato as a "leader " Hovanic then
asked the two employees "what they expected to gain by a
Union" and the two employees enumerated their "list of
demands," which included "better wages," "better working
conditions," "overtime pay," "senority arrangements," and
"hospitalization " Hovanic listed these "gripes" and ex-
plained to the two employees "I am going to take these
back over to Tom [Huston] "
Section 7 of the National Labor Relations Act guaran-
tees employees "the right to self-organization, to form, join
or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection," and the
"right to refrain from any or all such activities " Sec-
tion 8(a)(1) of the Act makes it an unfair labor practice for
an employer to "interfere with, restrain, or coerce employ-
ees in the exercise of" their Section 7 rights Recently, in
N L R B v Armstrong Circuit, Inc, 462 F 2d 355, 357 (C A
6, 1972), the court stated
In determining whether the particular questioning in
the instant case violates the Act we look to all the
surrounding circumstances to determine whether it
may reasonably be said that the interrogation "tends
to interfere with the free exercise of employee rights
under the Act " Hughes & Hatcher Inc v N L R B,
393 F 2d 557, 563 (6th Cir 1968)
Here, the two employees were openly asked to name the
Union "ringleaders" and were then called away from their
work stations where they were further interrogated about
"what they expected to gain by a Union " The employees'
demands or "gripes" were listed and brought back to high-
er management There were no assurances against reprisals
given to these employees And, as employee Senko re-
called, " at first, I didn't want to tell him [Hovanic],
but then I said I don't care, I'm a ringleader " Under the
circumstances, I find and conclude that such interrogation
plainly tends to interfere with employee Section 7 rights, in
violation of Section 8(a)(1) of the Act 15
I find and conclude that Respondent's subsequent delay
15 Counsel for the Respondent argues that this interrogation was not coer
cave because of inter also Hovanic s involvement and participation at the
January II union meeting (discussed infra) However Hovanic made clear
to the interrogated employees on January 16 that he was acting under in
structions and at the request of Area Supervisor Huston who wants to
know who s behind this Union thing The employees demands were
listed and thereafter given to Huston Under the circumstances it was clear
that Hovanic was acting on behalf of his superior in a manner which as
discussed above plainly tends to interfere with employee Section 7 active
ties
RED BARN SYSTEM, INC 1595
in rehiring employee D'Amato was violative of Section
8(a)(1) and (3) of the Act Thus, employee D'Amato was
one of the instigators of the union effort at the Lincoln
Avenue store She signed a union card on January 11 and
again on January 13 Her name was discussed with man-
agement as one of the "leaders" during Hovanic's interro-
gation of employees Senko and Cook on January 16
D'Amato testified on behalf of the Union during the repre-
sentation case before the Board on February 14 and 15
Subsequently, on February 21, D'Amato quit her job after
having been faulted by management Within an hour,
D'Amato reconsidered her decision and asked Hovanic for
her job back D'Amato explained to Hovanic that she
"wasn't serious" and asked did she "really [have] to quit "
Hovamc replied "Under the circumstances, yes " D'Ama-
to asked, "what circumstances " Hovanic replained "the
circumstances regarding the Union and the hearing " Ho-
vanic told employee D'Amato that "if he were to hire
[D'Amato] back, and if the Union were to find out, that
they could sue on the grounds of conspiracy" and that "if
he rehired [her] under those conditions, employees would
believe that it was under the condition [she] campaigned
against the Union " Hovanic assertedly "didn't want
people to believe that a deal had been made " Later
that same day, D'Amato and coworker Cook spoke to Ho-
vamc Cook promised "to stop campaigning" if it would
help get D'Amato's "job back " Hovanic asserted that
Cook's "campaigning against the Union had nothing to do
with" D'Amato "getting [her] job back " On the next day,
February 22, Hovanic informed D'Amato that "the only
way he would be able to hire [D'Amato] back was if the
secret ballot came in and the Union got voted out " Six
days later, on February 28, D'Amato again asked to be
rehired This time, D'Amato explained that she had spoken
to the Union "people," they were not "going to sue the
Company," and, as D'Amato acknowledged
I think I told him [Hovanic] I wanted to have
nothing more to do with Unions, I think
D'Amato was rehired that day She served as an observer
for the Company in the representation election on April 18
She tape recorded a union meeting and replayed the tape
to Hovamc 4 days before the election, on April 14 And,
after the election, she was promoted to "Relief Manager "
I am persuaded that, on this record, Respondent's delay
in rehiring D'Amato was motivated in substantial part by a
purpose to chill unionism among the unit employees
Hovamc's discussions with employee D'Amato from Feb-
ruary 21 through 28 were plainly calculated to get D'Ama-
to and her coworkers to withdraw their support from the
Union And, D'Amato understood this message She told
Hovanic on February 28 that she "wanted to have nothing
to do with the Unions " She tape recorded a union meeting
for Hovanic She served as an observer for the company in
the election She was later promoted to "Relief Manager "
I find and conclude that Respondent, by delaying the re-
hiring of D'Amato in the manner described above, violated
Section 8(a)(1) and (3) of the Act
In addition, I find and conclude that Huston and Ho-
vamc unlawfully threatened employees with more rigid
working conditions and reprisals and made clear to them
that it would be futile for the employees to choose the
Union as their bargaining agent As the credible evidence
shows, Huston and Hovanic spoke to the unit employees
on April 9 and 16 Huston apprised the employees that
11 if the Union got in, they would sit down and bargain
in good faith, but they didn't have to agree to anything,
and that it might be tied up in court for a long time, and
[the employees] wouldn't benefit from it because of the
great turnover and would probably be gone " At
the same time, Huston warned the employees that they
"would have more rigid work hours"-that they "wouldn't
be allowed to leave 10 minutes early for class " As
employee Cook credibly explained
He [Huston] said that if we got a Union we might not
be able to leave work early any more, and since most
of us were going to school at that time, it was impor-
tant, because they would let us have 10 minutes before
class
And, Cook recalled how Huston admonished the employ-
ees that "Servomation was so powerful of a company
that the Union couldn't make them do anything , they
would just sit down and bargain in good faith , that
this could be tied up in Court for so long that none of us
would ever benefit from it " Hovanic was quoted as
saying "basically the same thing " Hovanic similarly
warned employee Merrell that "he was letting employees
off 10 minutes before the hour so that they could
make [their] class [but] if the Union got in, he would
go strictly by the clock " Hovanic also discussed with
the employee that, "if [the employees] should cause a
strike, which would shut down the store, as he thought it
would, he would be able to replace [them] and place [them]
on a waiting list for one year, which he would call [them]
back if he needed [them] "
Section 8(a)(1) of the Act makes it an unfair labor prac-
tice for an employer "to interfere with, restrain, or coerce
employees" in the exercise of their right to self-organiza-
tion Section 8(c), in turn, provides that
The expressing of any views, argument, or opinion,
or the dissemination thereof shall not constitute
or be evidence of an unfair labor practice under any of
the provisions of this Act, if such expression contains
no threat of reprisal or force or promise of benefit
Read together, these provisions leave an employer free to
communicate to his employees his views respecting unions,
so long as that communication does not contain a "threat
of reprisal or force or promise of benefit" As the Supreme
Court stated in N L R B v Gissel Packing Co, Inc, 395
U S 575, 617-619 (1969)
Any assessment of the precise scope of employer
expression, of course, must be made in the context of
its labor relations setting Thus, an employer's rights
cannot outweigh the equal rights of the employees to
associate freely, as those rights are embodied in Sec-
tion 7 and protected by Section 8(a)(1) and the proviso
to Section 8(c) And any balancing of those rights
must take into account the economic dependence of
the employees on their employers, and the necessary
tendency of the former, because of that relationship,
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to pick up intended implications of the latter that
might be more readily dismissed by a more disinterest-
ed ear
[An] employer is free only to tell "what he reasonably
believes will be the likely economic consequences of
unionization that are outside his control," and not
"threats of economic reprisal to be taken solely on his
own volition " N L R B v River Togs, Inc, 382 F 2d
198, 202 (C A 2d Cir 1967)
And see, Surprenant Manufacturing Company v N L R B,
341 F 2d 756, 761 (C A 6, 1965), NLRB v Harold Mill-
er, Herbert Charles and Milton Charles, co-Partners, d/b/a
Miller Charles & Co, 341 F 2d 870, 873 (CA 2, 1965),
International Union of Electrical, Radio and Machine Work-
ers, AFL-CIO [NGCO Electrical Products Corp] v
NLRB, 289F2d757,763(CADC, 1960), NLRB v
Kolmar Laboratories, Inc, 387 F 2d 833, 836-838 (C A 7,
1967), N L R B v Louisiana Manufacturing Company, 374
F 2d 696, 702-703 (C A 8, 1967)
In the instant case, counsel for Respondent argues that
the Company did not tell its employee "that it was futile to
support the Union" and that management's remarks "care-
fully and repeatedly stressed that he [Huston] was outlining
only future possibilities " However, the record does not in-
dicate that management had received any proposed con-
tract demands from the Union And, under the circum-
stances, the statements of both Huston and Hovanic to the
unit employees that, in effect, the employees "would have
more rigid work hours" and "might not be able to leave
work [10 minutes] early any more" were not "carefully
phrased on the basis of objective fact to convey an
employer's belief as to the demonstrably probable conse-
quences beyond his control " [Gissel, supra] Instead,
I find and conclude that such statements were threats by
Respondent to withdraw existing benefits and impose more
onerous working conditions if the employees chose union
representation, in violation of Section 8(a)(1) of the Act
It was in this context that management also told the em-
ployees that, although the Company would "sit down and
bargain in good faith ," they didn't have to agree to
anything", "it might be tied up in court for a long time",
the employees "wouldn't benefit from it because of the
great turnover", and "would probably be gone", the Em-
ployer "was so powerful of a company that the Union
couldn't make them do anything", and "this could be tied
up in court for so long that none of [them] would ever
benefit from it " Hovamc also introduced the subjects
of strikes, "replacement" of striking employees and placing
striking employees on "a waiting list for one year" The
record before me does not show any reasonable or legiti-
mate basis for making these broad statements to the em-
ployees And, in the context of Respondent's opposition to
the organizational effort, I am persuaded that Respondent
was, by these statements, threatening its employees that, in
effect, choosing union representation would be a futile act
with adverse economic consequences I find and conclude
that such statements are proscribed by Section 8(a)(1)
Moreover, Hovanic, by also telling employees that their
hours had been cut "because of Union activity " was coer-
cively infringing upon employee protected Section 7 rights
In sum, as the Supreme Court stated in Gissel, supra at 620
[A]n employer cannot be heard to complain that
he is without an adequate guide for his behavior He
can easily make his views known without engaging in
""brinkmanship" when it becomes all too easy to
overstep and tumble [over] the brink," Wausaw Steel
Corp v N L R B, 377 F 2d 369, 372 (C A 7th Cir
1967) At least he can avoid coercive speech simply by
avoiding conscious overstatements he has reason to
believe will mislead his employees
B The Distribution of The Insurance Program
As discussed supra, Manager Hovanic interrogated em-
ployees Senko and Cook on January 16 at the request of
Area Supervisor Huston Hovanic had been asked by Hus-
ton "to find out who was in charge and what they wanted
" One of the employees' "gripes" disclosed to man-
agement as a result of this interrogation was the claimed
lack of any hospitalization insurance program Hovanic
testified that, following this interrogation, during late Janu-
ary or early February 1974, he first handed out to the Lin-
coln Avenue unit employees the "Highlight Summary" of
the "Red Barn System, Inc -Package Group Insurance
Plan for Stores," with the attached "Employee Enrollment
Application" for "Group Life and Health Benefits for Red
Barn Hourly Employees and their Families " [G C Exh
10 ] Hovamc, who had been manager of the Lincoln Ave-
nue Restaurant since August 1973, claimed that he first
became "aware of any hospitalization or life insurance pro-
grams that were available for Red Barn hourly employees"
during late January 1974 Hovanic assertedly "saw them
[the forms] laying on the table in Tom Huston's office "
Huston, in turn, claimed that he had received these forms
during late 1973, that he put these "applications in
[his] desk drawer" and "didn't do anything with them",
that he "wasn't satisfied with the coverage", and that ini-
tially he had "held them [the forms] back purposely" from
the employees Huston claimed that he first distributed
these forms to the unit personnel during late January as a
result of employee inquiries which were assertedly related
to him by another store manager
In NLRB v WKRG-TV, Inc, 470 F 2d 1302, 1307-8
(C A 5, 1973), the court dealt with an analogous issue,
stating, in part, as follows
In essence, the company argues that it cannot be fault-
ed for granting benefits to its employees when such
benefits were not motivated by an anti-union animus
We are in full agreement with the company Certainly
any rule that would prevent the granting of employee
benefits in the absence of an anti-union effect, either
intended or foreseeable, would go too far and it is not
impossible to envision a factual situation where a
grant of benefits during a campaign would be permis-
sible E g, N L R B v M H Brown Company, 2 Cir
1971, 441 F 2d 839, 842-843, Wilkinson Manufacturing
Co v N L R B, 8 Cir 1972, 456 F 2d 298, 303 But
this is not such a case
RED BARN SYSTEM, INC 1597
A company may in its employee relations be sin-
cerely noblesse oblige, but its nobility of purpose and
spirit must not be anti-union motivated The union is
not put to proving the absolute of anti-unionism, but
the Examiner and Board are free to engage the ecolog-
ical atmosphere of 8(a)(1) violations The Examiner
and Board have every right to conclude that the man-
na dropping from heaven were based upon fear that
sustenance would flow from unionization We cannot
ignore decisional acceleration in employee benefits
preceded by months of lethargy Lightning struck only
after the union's rod was hoisted In this case the wage
readjustments and other benefits, to say nothing of the
initial announcement of these benefits, were clearly a
counterweight to [the union's] organizational efforts
To permit a company to time its announcement and
allocation of benefits in such a fashion would be a
great disservice to the ideal of organizational freedom
so deeply imbedded in the N L R A
Applying these principles to the instant case, I find and
conclude that Respondent's distribution of this previously
retained insurance program was antiunion motivated
Here, as in N L R B v WKRG-TV, Inc, supra, "Lightning
struck only after the union's rod was hoisted " In the con-
text of Respondent's interrogation of the Union "ringlead-
ers," its ascertainment through this interrogation that the
employees wanted "hospitalization," and the sudden distri-
bution of this previously retained insurance program, I am
persuaded that this distribution and the resulting benefits
to the unit employees "were clearly a counterweight to [the
Union's] organizational efforts" (Ibid) I do not believe
management's assertions to the effect that Hovanic, in ef-
fect, by chance suddenly became aware of these insurance
forms during the organizational effort or that Huston dis-
tributed these forms solely as a result of employee inquiries
made to another store manager Instead, I am persuaded,
in the context of this organizational drive, that
Respondent's sudden distribution of these previously un-
available benefits to the unit employees was "consciously
related to the Union's organizational effort" and a viola-
tion of Section 8(a)(1) of the Act (Ibid)
C The Wage Increases
During late December 1973, Respondent was advised
that the State of Ohio had enacted a minimum wage statute
which might affect certain of its restaurants The Ohio law
imposed a $1 60 per hour minimum wage requirement ef-
fective January 1, 1974, applicable to certain Ohio coun-
ties All employees receiving less than $1 60 per hour in five
of Respondent's restaurants covered by this law, whose 2-
week pay period cycle ended January 12, were increased to
$160 per hour for that pay period Employees in these
stores were paid at the $1 60 minimum from December 30,
1973 16 The paychecks reflecting this increase were distrib-
uted about January 17, 1974 Remaining Ohio restaurants
of Respondent covered by this law-including its Youngs-
town stores-were then in the Company's January 5-19
2-week pay cycle And, as counsel for Respondent notes in
his brief, "At some point prior to the next payroll work-
sheet turn-in date of January 21, acting in accordance with
instructions which had been issued prior to January 14, the
payroll clerks hand-entered the new minimum wage scale
for all the affected stores on this January 5-19 cycle "
Thereafter, during April 1974, Respondent was advised
that the Federal minimum wage law had been "signed,"
which increased the minimum wage requirement to $1 90
per hour This increase was to be effective May 1, 1974
The Company's payroll department was instructed to im-
plement the $1 90 per hour minimum for the biweekly pay
period of April 14-27, 1974, for all stores in that 2-week
cycle, and for the biweekly pay period of April 21-May 4,
1974, for the remaining stores As counsel for Respondent
states in his brief, the "employees at the first group of
stores thereby received the increase in their paychecks dis-
tributed on May 2 and the remaining employees in
paychecks distributed on May 9, 1974 Thus, the entire
Red Barn payroll system was adjusted in compliance with
the Federal minimum wage by April 27 and May 4, 1974"
and the "Ohio Stores were treated in precisely the same
manner as all the stores countrywide " 17 In addition, there
was credible testimony that management, during their
April 9 and 16, 1974, speeches to the Lincoln Avenue em-
ployees, apprised the employees, in effect, that "effective
May 1, 1974" or "going into effect on May 1st" or "starting
in May," there would be a new minimum wage of $1 90 18
With respect to employee "wage adjustments" which
were granted subsequent to the above minimum wage in-
creases, it is stipulated
All employees of the Lincoln Avenue restaurant
who received increases effective the pay period ending
March 20, 1974, had been at or above $1 60 per hour
prior to the pay period ending January 19, 1974 All
employees of the Lincoln Avenue restaurant who re-
ceived increases for the pay period ending May 25,
1974, were above $1 60 per hour prior to the pay peri-
od ending April 27, 1974, with the sole exception of
Fran D'Amato All such employees who were above
$1 60 per hour prior to the pay period ending April 27,
1974 (and were still employed there during the pay
period ending May 25, 1974) received increases effec-
tive pay period May 25, 1974, with the exception of
employee C Girts
Counsel for the General Counsel argues
The wage increases in question are wage increases es-
tablishing a new minimum rate granted to unit em-
ployees effective the pay periods ending January 19,
1974, and April 27, 1974, and "wage adjustments"
17 The Lincoln Avenue store employees were on the April 14-27 payroll
cycle and received this increase in employee checks on May 2 1974
18 Employee Youngcross credibly recalled that she had been told in the
April speeches that the $1 90 increase would go into effect on May I Em
ployees Cook Merrell and Corll generally testified to the same effect
16 The 2 week pay cycle for the remaining restaurants affected by this The remaining factual data recited above is principally based upon the
law-including the Lincoln Avenue store-began on December 22 and end stipulations of the parties and the credible and essentially uncontroverted
ed on January 4 1974 testimony of Michael Rivera assistant to Respondents president
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
granted to certain unit employees the pay periods end-
ing March 20, 1974 and May 25, 1974 (G C Exh 12)
The announcement of wage increases which Gen-
eral Counsel asserts were unlawful are those made at
unit employee meetings on or about April 9 and 16,
1974
Counsel for General Counsel further argues that "it seems
apparent that at least part of Respondent's purpose in all
of these actions was to undermine support for the Union
among the unit employees " However, the January and
May wage increases were put into effect by Respondent in
general compliance with the pertinent Ohio and Federal
minimum wage enactments Under the circumstances, I am
not sufficiently persuaded, on this record, that the granting
of these two wage increases was unlawfully motivated Cf
Tonkawa Refining Co, 175 NLRB 619, 620 (1969) Further,
the subsequent "wage adjustments" generally granted to
employees who were then at or above minimum wage lev-
els have not been shown to have been unlawfully purposed
And, finally, management, in announcing these increases
to its unit employees on April 9 and 16, 1974, reasonably
and properly told the unit employees that the minimum
wage increases would be effective May I Likewise, man-
agement reasonably and properly apprised unit employees
that wage adjustments for those at or above the minimum
level would be made Although these increases and an-
nouncements of such increases occurred during the organi-
zational campaign, nevertheless, the granting of the re-
quired minimum increases, the subsequent adjustments
attending the minimum increases, and the announcements
of these increases were, in my view, carefully utilized as
legitimate means or subjects available to management dur-
ing the unionization effort 19
D The Propriety of a Bargaining Order
1 The Union's majority status in an appropriate unit
that a majority of the unit employees did not properly or
validly designate the Union as their bargaining agent The
evidence pertaining to the Union's majority status during
the pertinent period is summarized herein 21
The first union meeting was held at the union's offices
about 7 p in on January 11, 1974 Employee Cook ac-
knowledged that previously she had called the Charging
Party Union "because that is the Union Mr Hovanic told
[her that she] should call " Union Secretary-Treasurer
Attelio Marconi confirmed that employee Cook had ar-
ranged the January 11 meeting Present at the January 11
meeting were Store Manager Hovanic and employees Sen-
ko, D'Amato, Bhe, and Cook Union Secretary-Treasurer
Marconi recalled that someone stated at this meeting "that
Mr Hovanic was better able to speak and get information
on how to organize for the group " Employee Cook re-
called that Hovanic "had been designated as the spokes-
man to give this information because he primarily knew
about it more than anyone else " At this meeting, Hovanic
and the others present "were asking questions on what was
involved in this proceeding to get a Union in " And,
as Marconi explained, Hovanic was "somewhat critical of
the wages" of the Company 22
(3) Harold Bhe (G C Exh 5(b) )
(4) Rita Cameron (G C Exh 5(p) )
(5) Ernest Carn Jr (G C Exh 5(c) )
(6) Audrey Cook (G C Exh 5(m) )
(7) Roxanne Corli (G C Exh 5(l))
(8) Francesca D Amato (G C Exh 5(d) )
(9) Sherry DeGregory (G C Exh 5(e) )
(10) Mark DiRenzo (G C Exh 5(k) )
(11) Michael Hagerty (G C Exh 5(f) )
(12) Nathaniel Harris (G C Exh 5(r) )
(13) Andrea Kulik (G C Exh 5(u) )
(14) Ramona McRae (G C Exh 5(n) )
(15) Cynthia Merrell (G C Exh 5(s) )
(16) Karen Oreskovich (G C Exh 5(g) )
(17) Ahmad Salehpour (G C Exh 5(o) )
(18) Mary Senko (G C Exh 5(1) )
(19) Amos Stone Jr (G C Exh 5(h) )
(20) Wayman Washington (G C Exh 5(q) )
As discussed supra, a unit of all full-time and regular
part-time employees at Respondent's Lincoln Avenue Res-
taurant is appropriate for collective-bargaining purposes
The Union requested recognition as bargaining agent for
the unit employees in a letter dated January 14, 1974 This
letter was received by the Company on January 16, 1974
As of January 16, there were 23 employees in this unit
Counsel for General Counsel argues that, as of January 16,
20 out of 23 unit employees had signed valid union author-
izations Cf Rea Construction Company, 137 NLRB 1769,
1770, footnote 1 (1962) 20 Counsel for Respondent asserts
19 I note that the May minimum rate was put into effect for a number of
stores including the unit store on April 14 The employees involved how
ever, did not receive this increase until May 2 As found supra it appears
this action was a part of Respondents systemwide effort to comply in sub
stantial part with the Federal law effective May 1 1974
20 The union cards state, in part that the undersigned an employee
of [Red Barn System] hereby authorize[s] Retail Clerks Local Union
298 to represent me for the purpose of collective bargaining The 20
cards signed by January 16 1974 are those of
(1) Karen Barnett (G C Exh 5(a) )
(2) Virginia Batchelor (G C Exh 5(t) )
Norma Montero signed her card on January 18 1974 (G C Exh 5(i)
21 Respondent asserts in its brief
During the period of January 14 to March 1 1974 the employee
complement at Lincoln Avenue was as low as 18 and as high as 23
Throughout this period there were at least 2 individuals who never
signed a card As is readily apparent if the Respondent can demon
strate that 10 of 21 cards are invalid then these 10 employees plus the
2 unsigned employees could make it arithmetically impossible for the
Union to have attained a majority at any relevant point in time
As found supra the Company rejected the Union s request for recognition
on January 21 1974 The Union pursued its bargaining request by filing a
representation petition on January 31 1974 Under all the circumstances I
find and conclude that the Union s request dated January 14 and received
by the Company on January 16 was a continuing demand at least
through January 31 1974 Cf Local 152 aff/w International Brotherhood of
Teamsters Chauffeurs and Helpers of America [American Compressed Steel]
v NLRB 343 F 2d 307 310 (C A D C 1965) NLRB v Kostel Corp
d/b/a Big Ben Shoe Store 76 LRRM 2643 2645 64 LC ¶ 11 542 (C A 7
1971) Rhea Construction Co supra
22 Hovanic testified with respect to the January I I meeting in part as
follows
Well the first thing I [Hovanic ] introduced myself to Mr Marconi I
told him that I was the store manager I made a joke to him about
it was pretty unusual to have somebody from Management coming to a
Union hall and I told him at that time that I would act as spokesman
for the group simply because I knew more about the corporate organs
zation then most or the other kids did
RED BARN SYSTEM, INC 1599
Marconi testified that the subject of union authorization
cards was discussed at the January 11 meeting Marconi
explained
I told them that the cards had to be signed, authoriza-
tion cards for representation, and the cards had to be
signed in order for me to petition the Government or
make a demand I wanted to have a strong major-
ity I explained to them the various ways in
which the card could be used Well, if the Com-
pany wanted to substantiate our majority position that
we could take a disinterested party to act as a disinter-
ested judge to scrutinize the signing of the cards with
the list of employees I also said that if the Com-
pany did not recognize us, then, we would have to
petition to the Board to have an election by secret
ballot
All four employees present at this meeting-Senko, D'Am-
ato, Cook, and Bhe-signed union cards and handed the
cards to Marconi Hovanic did not sign a union card
Thereafter, about 7 a in on January 13, 1974, a group of
10 unit employees (including the 4 employees who attend-
ed the January 11 meeting) met with Union Secretary-
Treasurer Marconi at the Union's offices Hovanic was not
present at this meeting All 10 employees signed union au-
thorization cards at this meeting Marconi testified
Well, we had a general discussion of what the law
requires in order for a group of people to become or-
ganized and at that particular time I explained to them
that the law requires that a labor organization obtain
approximately 30 percent of the employees of that
particular location before I could petition to the Na-
tional Labor Relations Board But, I explained to
them also, that if I obtained a strong majority on an
authorization for representation card that I would
send a letter to the employer and demand recognition
for purposes of collective bargaining
Marconi recalled that, "after a general discussion and
much conversation," the 10 unit employees signed cards
"upon the conclusion of the meeting " The testimony per-
taining to the signing of these 10 cards and the signing of
the remaining 11 cards is stated below
(1) Karen Barnett (G C Exh 5(a)) Marconi testified
that Barnett's card "was filled out after the conclusion of
Hovamc further testified I did almost all the talking for the employees
Hovamc explained
Q (By Mr Bauders) Now I believe you have testified that you at
tended a meeting at the Union hall with four employees on January 11
1974 is that correct?
A Yes
Q Now, at this meeting didn t you express concern that you didn t
want the fact known that you had been there at that meeting9
A Yes I said to Mr Marconi that being a member of Management
that I was afraid this might have some type of bearing on my employ
ment at the Red Barn and I asked him if he would keep it in confi
dence and he replied, Oh, yes I have never seen you before what is
your name again'
Q Well in fact, didn t you and all the employees present at that
meeting agree among yourselves that you would not reveal this to any
one that was not present'
A Right
our meeting on January 13 by Karen Barnett and handed
to Marconi Marconi explained
It was signed upon the conclusion of our meeting on
January 13 and handed to me, given to me by Karen
Barnett who was in attendance at that meeting
(2) Virginia Batchelor (G C Exh 5(t)) Employee
D'Amato testified that she "saw" this card-dated January
15, 1974-"in her [Batchelor's] presence " D'Amato testi-
fied "I knew she [Batchelor] had signed it, but I did not
witness the actual signature " D'Amato could not specifi-
cally "recall" whether Batchelor returned the card to her
D'Amato further testified
I don't really remember It has been so long ago, and
I can't remember where or when I remember her
[Batchelor] signing the card I do not remember actu-
ally seeing her signing the card, but I remember it
being in her presence, and when I saw it, it was signed
When asked "When did you again see it9" D'Amato an-
swered "As soon as she had signed it" D'Amato ex-
plained that she "must have" seen Batchelor sign the card,
although D'Amato "really" could not "remember " 23
(3) Harold Bhe (G C Exh 5 (b)) Bhe first signed a
union card on January 11, 1974 Bhe also attended the
meeting of January 13 Union Secretary-Treasurer Marco-
ni recalled that employee Bhe handed his signed card to
Marconi on January 13
(4) Rita Cameron (G C Exh 5(p)) Employee Cook tes-
tified that on January 13, 1974, D'Amato and Cook went
to the residence of employee Cameron, "and explained to
her Union representation and asked her to sign this card if
she was interested " Cameron signed the card in the
presence of D'Amato and Cook on January 13
(5) Ernest Carn, Jr (G C Exh 5(c)) Union Secretary-
Treasurer Marconi testified that this card was signed on
January 13 by Ernest Carn Marconi, who sat next to Carn
at the union meeting, witnessed Carn sign the card and
then return it to Marconi
(6) Audrey Cook (G C Exh 5(m)) Cook first signed a
Union card on January 11 Cook testified that at the Janu-
ary 13 meeting she signed "another card " She explained
the other employees were present at that time
[January 13], everyone was signing cards, so we were
asked to sign one just to let the other employees
know that we did sign cards along with them 4
(7) Roxanne Corll (G C Exh 5(l)) Corll testified that
23 D Amato acknowledged that when interviewed earlier by counsel for
General Counsel D Amato had stated
I [D Amato] believe I told you that I think I saw her [Batchelor] sign it
I told you I did see her sign it
D Amato now claimed that she is not sure However according to D Am
ato
When she [Batchelor] had the card in her hands it was blank Now the
next time I saw the card it was filled out
D Amato placed this incident at the union hall The card dated January 15
1974 is stamped received by the Boards Regional Office on January 31
1974
24 According to Marconi the four cards signed previously on January I I
were later destroyed
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she read and signed her card on January 16 Corll recalled
that D'Amato gave her this card Corll testified
Well, Audrey Cook had told me about the Union
before that [Cook] said that Fran [D'Amato] had a
card for me to sign and then Fran gave me the card
Corll testified that Cook had stated to her
they were thinking about getting a union in, and
they thought they had enough reasons to get one in
She [Cook] told me like they wanted it for raise in-
creases, and make vacation leaves, and sick leaves,
and things like that
Corll further testified that Cook had stated to her
if the majority of the employees at the Red Barn
signed this card, then that meant that the Union
would send a letter to Red Barn requesting recogni-
tion
In addition, Corll recalled that Cook "said something
about if the majority of the employees signed the cards,
and if the Union were recognized, then we could have a
chance to vote to see if it could get in " Further, according
to Corll, employee D'Amato said "basically the same
thing" "if I signed it, it didn't mean I had to do anything,
no obligation or anything " Corll also acknowledged that
she had been told that "this card would be used if they got
a majority to make a demand on the Company for recogni-
tion" with "the hope of getting the Company to recognize
the Union " Corll "thought you had to have an election"
even "if the Company granted recognition after they re-
ceived the letter "
(8) Francesca D'Amato (G C Exh 5(d)) D'Amato first
signed a card on January I I Union Secretary-Treasurer
Marconi testified that on January 13, 1974, D'Amato
handed a signed union card to him
(9) Sherry DeGregory (G C Exh 5(e)) Marconi testified
that he received this card at the January 13 meeting Mar-
coni recalled that the cards of the unit employees "were
slid across the table ," and
upon picking it up, I [checked] the date and the
signature and so on I checked each and everyone and
I think there were 10 at that time that I accepted
DeGregory was hired by the Company on January 14
Cook, who also attended the January 13 meeting, testified
Sherry DeGregory was also present at this very same
meeting and she was sitting beside me at this meeting,
directly to my right, and she was explained also at the
time I was that it was for Union recognition, and she
signed it
(10) Mark DiRenzo (G C Exh 5(k)) DiRenzo testified
that he read and signed his union card on January 16
DiRenzo received his card from D'Amato and Cook Di-
Renzo "knew what it was all about, and [he] had gone
through and filled it out and signed it and then went back
to work " DiRenzo recalled " they just said that this
would show that we had the majority of the store in order
so we would get the election "
(11) Michael Hagerty (G C Exh 5(f)) Union Secretary-
Treasurer Marconi received this card at the January 13
meeting Marconi was given this card by Hagerty, "filled
out" and signed
(12) Nathaniel Harris (G C Exh 5(r)) Cook testified
that "this card was signed by Nate Harris, and he was
present with Wayman Washington when they were
out to Fran's car and [Fran D'Amato] got the cards out of
her glove compartment " When Cook received this card
from Harris, it was dated and signed This card is dated
January 14
(13) Andrea Kuhk (G C Exh 5(u)) Kulik testified that
she read and signed her union authorization card on Janu-
ary 14, 1974 She explained that she mistakenly wrote 1973
instead of 1974 on her card
(14) Ramona McRae (G C Exh 5(n)) Cook testified
that she "explained to [McRae] about Union recognition
and asked her if she was interested, and if so, would she
write in her name and fill out this card, and she said yes, so
I [Cook] gave her the card and she went into the restroom
and when she came back out, it was filled out " McRae
returned the signed card to Cook on or about January 14,
1974 25
(15) Cynthia Merrell (G C Exh 5(s)) Merrell testified
that on January 13 she read and signed her union card
(16) Karen Oreskovich (G C Exh 5(g)) Oreskovich tes-
tified that on January 13 she read and signed her union
card
(17) Ahmad Salehpour (G C Exh 5(o)) Cook testified
that D'Amato and Cook went to Salehpour's residence on
January 13, 1974, and
we explained to him the meeting we had just at-
tended about Union recognition, and asked him if he
was interested, and if he was, to sign the card, which
he did at that time in his room
(18) Mary Senko (G C Exh 50)) Senko first signed a
union card on January 11 Senko testified that she also
signed a union card on January 13
(19) Amos Stone, Jr (G C Exh 5(h)) Union Secretary-
Treasurer Marconi testified that this card "was filled out at
the meeting of January 13th and I witnessed Stone
signing this " The card was then given to Marconi
(20) Wayman Washington (G C Exh 5(q)) Cook testi-
fied that Washington-after getting this card from
D'Amato's automobile in the store parking lot-handed
the card to Cook "filled out" and signed on January 14,
1974
(21) Norma Montero (G C Exh 5(t)) Montero testified
that she signed a union card on January 18, 1974 26 She
read the card before signing it She had been asked to sign
it by Cook and D'Amato She "was told it [the card] was
really nothing " She explained
I'm saying that I was told it was for a Union I
did want to find out about it, but I didn't sign because
I was going to pay for anything I signed it because I
wanted to know more about it
25 Cook noted that this card is dated January 12 but she believed that it
was in fact signed on January 14 This card is stamped received by the
Board s Regional Office on January 31
26 She noted that she mistakenly dated the card for 1973
RED BARN SYSTEM, INC 1601
When asked "Did you understand that [by] putting your
signature on the card that you were authorizing Local 298
to represent you for the purpose of collective bargaining?"
Montero answered "Afterwards, I knew it, yes " Montero
further testified that the employees who gave her this card
"just told me it was for the Union to see if they could get
the Union into the Red Barn " When asked if "anything
else" was said, Montero could not remember Montero fur-
ther testified that she in fact signed two union cards The
first one was apparently given to her by Cook This card
was "misplaced" and she signed a second card for D'Ama-
to She explained that when she received the second card,
nothing was said to her regarding the card 27
Counsel for Respondent argues in his brief that employ-
ee Corll's card should not be counted because she was as-
sertedly told, inter alia, that she would be given "a chance
to vote" and "no obligation" was incurred Corll read her
card before signing it The card provides that the employ-
ee " hereby authorize[s] Retail Clerks Union Local 298
to represent [her] for the purpose of collective bargaining
" In N L R B v Gissel Packing Co, Inc, et al, 395
U S 575, 606-608 (1969), the Supreme Court stated
In resolving the conflict among the Circuits in favor
of approving the Board's Cumberland rule, [144 NLRB
1268 (1963) ], we think it sufficient to point out that
employees should be bound by the clear language of
what they sign unless that language is deliberately and
clearly canceled by a union adherent with words cal-
culated to direct the signer to disregard and forget the
language above his signature There is nothing incon-
sistent in handing an employee a card that says the
signer authorizes the union to represent him and then
telling him that the card will probably be used first to
get an election Elections have been, after all, and will
continue to be, held in the vast majority of cases, the
union will still have to have the signatures of 30% of
the employees when an employer rejects a bargaining
demand and insists that the union seek an election
We cannot agree with the employers here that employ-
ees as a rule are too unsophisticated to be bound by
what they sign unless expressly told that their act of
signing represents something else
We agree, however, with the Board's own warnings
in Levi Strauss & Co, 172 NLRB 732, 733, fn 7 (1968),
that in hearing testimony concerning a card challenge,
trial examiners should not neglect their obligation to
ensure employee free choice by a too easy mechanical
application of the Cumberland rule We also accept the
observation that employees are more likely than not,
many months after a card drive and in response to
questions by company counsel, to give testimony dam-
aging to the union, particularly where company offi-
cials have previously threatened reprisals for union ac-
tivity in violation of §8(a)(1) We therefore reject any
27 I credit the testimony of Hovanic Marconi, Cook D Amato Corll
DiRenzo Kuhk Merrell Oreskovich Senko, and Montero as summarized
above Their testimony pertaining to the union cards is in part mutually
corroborative and substantiated in part by the events attending the signing
of the cards Under all the circumstances, I am persuaded that the testimo
ny summarized above is a credible reliable and reasonable account of what
transpired
rule that requires a probe of an employee's subjective
motivations as involving an endless and unreliable in-
quiry [Footnotes omitted ]
Assessed in the context of employee Corll's full testimony
and upon the record as a whole, I am not persuaded that
the "clear language" on her union card was "deliberately
and clearly canceled by a union adherent with words cal-
culated to direct the signer to disregard and forget the lan-
guage above [her] signature " (Ibid) And, of course, Corll's
"subjective motivations" are not in issue before me (Ibid )
Moreover, I note that Corll acknowledged that she had
been told that "this card would be used if they got a major-
ity to make a demand on the Company for recognition"
with "the hope of getting the Company to recognize the
Union" Cf Fort Smith Outwear, Inc, and H L Friedlen
Company, 205 NLRB 592, (1974), enforcement denied in
part 499 F 2d 223 (C A 8, 1974)
Counsel for Respondent next argues that the card of em-
ployee Montero "suffers from virtually the same defect"
Montero, as recited, supra, signed two cards She read and
examined the cards She claimed, inter aha, that "af-
terwards" she understood that by signing the card she au-
thorized the Union to represent her Montero also ac-
knowledged that she was told that the card "was for the
Union to see if they could get into the Red Barn " Here,
too, in the context of the entire campaign and the events
attending the signing of the cards, I am not persuaded that
the "clear language" on her two union cards was "deliber-
ately and clearly canceled by a union adherent with words
calculated to direct the signer to disregard and forget the
language above [her] signature " [Gissel, supra J
Counsel for Respondent argues that the card purported-
ly signed by Batchelor "is invalid for lack of authentica-
tion " I am persuaded that the testimony of D'Amato, re-
cited, supra, reasonably and sufficiently establishes that
Batchelor signed the union card on January 15, 1974 28 Cf
Don the Beachcomber, 163 NLRB 275, fn 2 (1967)
Counsel for Respondent argues that DiRenzo signed "a
card when he was told that it would be used to obtain a
Union election " Here, too, I find that the employee
"should be bound by the clear language" on the card and
that language was not in fact "deliberately and clearly can-
celled by a union adherent with words calculated to direct
the signer to disregard and forget the language above his
signature " N L R B v Gissel Packing Co, supra As the
Supreme Court said, "there is nothing inconsistent in hand-
ing an employee a card that says the signer authorizes the
Union to represent him and then telling him that the card
will probably be used first to get an election "
Further, counsel for Respondent argues that the cards of
Cook, D'Amato, Senko, and Bhe, as well as the other em-
ployee cards obtained by January 13, cannot be used to
determine majority status because of Hovamc's involve-
281 reserved my ruling on an objection to this card at the hearing As
sessed in the context of the entire record I find and conclude that this card
has been sufficiently authenticated and should be computed in determining
majority status during the pertinent period While the testimony of D Ama
to in this respect is not entirely free of doubt it does sufficiently establish
that this card was observed in the hands of the employee filled out on or
about January 15 This card is stamped received by the Boards regional
office on January 31 1974
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment at the January I1 union meeting In short, Respon-
dent claims that the Union's majority status was tainted by
Hovanic's prounion activities The Board dealt with a sinu-
lar issue in WKRG-TV, Inc, 190 NLRB 174, 175 (1971), in
part, as follows
We are not persuaded that any of the six employees in
question was induced to sign a card because of pro-
union remarks by [Supervisors] Keeney or Ellis But
assuming that fact, we cannot find in the circum-
stances of this case that the cards were thereby invali-
dated From almost the beginning of the Union's or-
ganization campaign on November 10, the Re-
spondent, particularly through its president, Gid-
dens, made it plain to the employees that it was op-
posed to the Union, indeed, as found by the trial ex-
aminer, Giddens and other managment officials
sought to undermine or defeat the Union It therefore
must have been obvious to the employees that, in mat-
ters concerning the Union, Keeney and Ellis in no
way spoke for management In their eyes, all were fel-
low employees whom the Union was seeking to orga-
nize, and Keeney and Ellis, like the rank-and-file in
the group, were expressing their own personal views
about the value of union representation Therefore, no
voice of management intimidated the employees into
signing cards In our opinion, especially in view of the
strong opposition to the Union openly manifested by
higher management officials, and the absence of any
indication of such threat by Keeney or Ellis, this rec-
ord does not permit a finding that the employees may
have signed cards out of fear of future retaliation at
the hands of Keeney or Ellis Contrary to the trial
examiner, therefore, we find the Union represented a
majority of the employees when it requested recogni-
tion and bargaining [Footnotes omitted]
The Fifth Circuit, in enforcing the Board's Order, 470 F 2d
1302, 1314, (1973), noted, inter alga
As to each of these six employees, it is apparent that
when they signed the cards, they were aware that
either or both [supervisors] were favorably dis-
posed toward the Union It is equally apparent, how-
ever, that none of the employees was ever approached
by the [supervisors] for the purpose of soliciting an
authorization card and that neither [supervisor] active-
ly campaigned for the Union
This issue must, of course, be resolved on the facts of
each case Here, as stated, supra, four unit employees-
Bhe, Cook, D'Amato, and Senko-attended the January I I
union meeting with Manager Hovanic Hovanic acted as a
spokesman at this meeting Union Secretary-Treasurer
Marconi explained the purpose of the authorization cards
to the employees at this meeting The four employees
signed cards, Hovanic, however, did not sign a card In
fact, Hovanic and the four employees and Marconi agreed
that Hovanic's attendance was to be a secret because he
was a part of management As Hovanic apprised the em-
ployees and Marconi " being a member of Manage-
ment I was afraid this might have some bearing on my
employment at the Red Barn, and I asked him [Marconi] if
he would keep it in confidence " All present agreed
"not [to] reveal this to anyone that was not present " The
four employees present at the January 11 meeting under-
stood management's opposition to the Union, as revealed
by Hovanic's request that this be kept a "secret " The four
employees subsequently attended a January 13 meeting
and again signed union cards Hovanic was not present
Under all the circumstances, I am persuaded that the four
employees who signed cards on January 13 were not acting
out of fear of retaliation of management if they did not
sign Nor am I persuaded that the remaining 17 employees
were in any way affected by Hovanic's early involvement
in the campaign And, as discussed, supra, Hovanic and
Huston subsequently participated in management's anti-
union campaign at the restaurant In sum, the record does
not establish that any "voice of management intimidated"
either the 4 employees or the remaining 17 employees "into
signing cards " WKRG-TV, Inc, supra
I therefore find and conclude that by January 16 and 31,
1974 (when the representation petition was filed), the
Charging Party Union had been properly designated as
bargaining agent by a majority of employees in an appro-
priate unit
2 A bargaining order is an appropriate remedy
While the Board normally views a secret-ballot election
as the most satisfactory method of resolving questions of
representation, it has recognized that certain special cir-
cumstances may require reliance upon other indicia of em-
ployee sentiment Thus, where a union has obtained valid
authorization cards from a majority of the employees in an
appropriate unit but the employer engages in a course of
unlawful conduct which tends both to destroy this majority
and to negate the likelihood of a future fair election, the
Board has concluded, with the approval of the courts, that
the status quo ante would be most nearly restored and the
policies of the Act best effectuated by an order requiring
the employer to bargain with the union which, prior to the
unfair labor practices, had been designated as the represen-
tative by a majority of the employees In N L R B v Gissel
Packing Co, Inc, supra at 614-615, the Supreme Court
stated the rule as follows
In fashioning a remedy in the exercise of its discretion,
then the Board can properly take into consideration
the extensiveness of an employer's unfair practices in
terms of their past effect on election conditions and
the likelihood of their recurrence in the future If the
Board finds that the possibility of erasing the effects
of past practices and ensuring a fair election (or a fair
rerun) by the use of traditional remedies, though pres-
ent, is slight and that employee sentiment once ex-
pressed through cards would, on balance, be better
protected by a bargaining order, then such an order
should issue
Applying this principle to the instant case, I find and
conclude that the Union by January 16, 1974, had secured
signed union authorization cards from 20 out of 23 unit
employees and, by January 21, when the Company refused
recognition, the Union had secured signed union authori-
RED BARN SYSTEM, INC 1603
zations from 21 out of 23 unit employees The Company,
upon receipt of the Union's request for recognition on Jan-
uary 16, coercively interrogated the "ringleaders" about
these employee protected activities The Company discov-
ered from this interrogation that the employees wanted,
inter aba, a hospitalization benefit program Management
then made available to the unit employees previously with-
held hospitalization and insurance forms and applications
Further, employee D'Amato, named as a union "leader" to
the Company during its January 16 interrogation, was later
delayed in her rehinng until she assured management that
she "wanted nothing more to do with Unions " D'Amato,
who previously testified for the Union at the representation
hearing before the Board, became an observer for the
Company at the April 18 election And, 4 days before the
election, this employee tape recorded a union meeting and
played the tape to management D'Amato was subsequent-
ly promoted to "Relief Manager" and now serves in that
position In addition, during management's antiunion cam-
paign, employees were threatened with loss of existing ben-
efits and other reprisals if the Union won the election The
futility of choosing union representation was made clear to
the workers And, employees were apprised that reductions
in their work were because of union activities The vote at
the April 18 election was 3 ballots for the Union, and 14
against
Under the circumstances, I find and conclude that the
possibility of erasing the effects of these unfair labor prac-
tices among the some 20 or more unit employees by use of
traditional remedies is, at best, slight In sum, on this rec-
ord I find and conclude that the foregoing acts of interfer-
ence, restraint, coercion, and discrimination were plainly
calculated to destroy the Union's majority status among
the employees and negate the likelihood of holding a future
fair election Indeed, Respondent's misconduct achieved
this very effect A bargaining order is therefore an appro-
priate remedy here to effectuate the purposes of the Act 29
CONCLUSIONS OF LAW
I Respondent Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act
2 Charging Party Union is a labor organization within
the meaning of Section 2(5) of the Act
3 Respondent violated Section 8(a)(1) and (3) of the
Act by coercively interrogating its employees about em-
ployee union activities, by delaying the rehiring of employ-
ee D'Amato in order to discourage employees from engag-
ing in protected union activities, by threatening employees
with more rigid work hours and related reprisals and telling
them that it would be futile for the employees to choose
union representation, by telling employees that their hours
29 As the unfair labor practices found during the pertinent period also
interfered with the holding of a fair and free election on April 18 1974 1
recommend that the April 18 election be set aside And, in view of my
finding and conclusion that a bargaining order is warranted I further rec
ommend that the petition in representation Case 8-RC-9367 be dismissed
and that all proceedings held in connection therewith be vacated and set
aside
of work had been reduced because of union activity, and
by making available a hospitalization insurance program to
its employees in an effort to defeat the union's organiza-
tional campaign
4 Respondent's unfair labor practice conduct during
the pertinent period also interfered with the holding of a
fair and free representation election on April 18, 1974 I
therefore recommend that the election be set aside, the pe-
tition in Case 8-RC-9367 be dismissed and all proceedings
held in connection therewith be vacated and set aside
5 A unit appropriate for collective-bargaining purposes
consists of Respondent's restaurant employees at 223 Lin-
coln Avenue, Youngstown, Ohio, as described below
All full-time and regular part-time employees, exclud-
ing all office clerical employees and professional em-
ployees, guards and supervisors as defined in the Act
6 Charging Party Union is the exclusive representative
of a majority of the employees of Respondent in the unit
described above
7 Respondent did not comnut other unfair labor prac-
tices as alleged in the complaint and not specifically found
herein
8 The unfair labor practices found herein affect com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act And, as the unfair labor
practices committed by the Respondent are of a character
striking at the core of employee rights safeguarded by the
Act, I shall recommend that it cease and desist from "in
any other manner" infringing upon rights guaranteed em-
ployees in Section 7 of the Act
It has been found that Respondent violated Section
8(a)(1) and (3) of the Act by discriminatorily delaying the
rehiring of employee D'Amato from about February 21 to
about February 28, 1974 Respondent will be directed to
make D'Amato whole for any loss of earnings suffered by
reason of this discrimination, less net earnings during such
period, with backpay computed on a quarterly basis in the
manner established by the Board in F W Woolworth
Company, 90 NLRB 289 (1950) Backpay shall carry inter-
est at the rate of 6 percent per annum, as set forth in Isis
Plumbing & Heating Co, 138 NLRB 716 (1962) And, it
will be recommended that Respondent preserve and make
available to the Board, upon request, all payroll records,
social security payment records, timecards, personnel rec-
ords and reports, and all other records necessary and use-
ful to determine the amount of backpay due and the rights
of reinstatement under the terms of these recommenda-
tions
And, for the reasons stated, supra, section III, D, a bar-
gaining order is deemed appropriate here to best effectuate
the purposes and policies of the Act
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and upon the entire record in this case, and
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended
ORDER"
Respondent, Red Barn System, Inc, Youngstown, Ohio,
its officers, agents, successors, and assigns, shall
1 Cease and desist from
(a) Coercively interrogating its employees about em-
ployee union activities
(b) Threatening its employees with more rigid working
hours and other reprisals if they choose union representa-
tion
(c) Telling its employees that it would be futile for them
to choose union representation
(d) Telling its employees that their hours of work have
been reduced because of their union activities
(e) Making available to its employees a hospitalization
insurance program or otherwise conferring benefits upon
its employees in order to discourage their union activities
(f) Discouraging employee membership in Retail Clerks
Local Union 298, affiliated with Retail Clerks Internation-
al Association, AFL-CIO, or other employee protected ac-
tivities, by discriminatorily delaying the rehiring of em-
ployees, or by otherwise discriminating against its
employees in regard to their hire and tenure of employ-
ment or in regard to any other condition of employment
because of their union support, affiliation, or protected
concerted activities
(g) In any other manner, interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist
the above Union or any other labor organization, to bar-
gain collectively through representatives of their own
choosing and to engage in other protected concerted activi-
ties for the purposes of collective bargaining or other mutu-
al aid or protection, or to refrain from any or all such
activities
30 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
2 Take the following affirmative action designed to ef-
fectuate the policies of the Act
(a) Upon request, bargain collectively with Retail Clerks
Local Union 298, affiliated with Retail Clerks Internation-
al Association, AFL-CIO, as the exclusive bargaining rep-
resentative in the unit described below, and, if an under-
standing is reached, embody such understanding in a
signed agreement The bargaining unit consists of Respon-
dent Company's restaurant employees at 223 Lincoln Ave-
nue, Youngstown, Ohio, as described below
All full-time and regular part-time employees, exclud-
ing all office clerical employees and professional em-
ployees, guards and supervisors as defined in the Act
(b) Make employee Francesca D'Amato whole for any
loss of earnings sustained by her, in the manner set forth in
this Decision
(c) Preserve and, upon request, make available to the
Board or its agents all payroll and other records, as set
forth in this Decision
(d) Post at its restaurant at 223 Lincoln Avenue,
Youngstown, Ohio, copies of the attached notice marked
"Appendix " 31 Copies of said notice, on forms provided by
the Regional Director for Region 8, after being duly signed
by the Respondent's representative, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material
(e) Notify the Regional Director for Region 8 in writing
within 20 days from the date of this Order what steps have
been taken to comply herewith
IT IS FURTHER ORDERED that the election held on April 18,
1974, in Case 8-RC-9367 be set aside, that the petition
therein be dismissed and that the proceedings in that case
be vacated
IT IS FURTHER ORDERED that the complaint be, and it here-
by is, dismissed insofar as it alleges unfair labor practices
not specifically found herein
31 In the event that the Board s Order is enforced by a Judgment of a
United States Coui t 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