Restaurant Corp. of America

National Labor Relations Board - Board Decisions

Aug 21, 1984

271 N.L.R.B. 1080 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Restaurant Corporation of America and Hotel and
Restaurant Employees Union, Local 25, Hotel
Employees and Restaurant Employees Interna-
tional Union, AFL-CIO. Cases 5-CA-13407
and 5-CA-13921
21 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN, HUNTER, AND DENNIS
On 9 September 1982 Administrative Law Judge
Peter E. Donnelly issued the attached decision.
The General Counsel and the Respondent filed ex-
ceptions and supporting briefs, the General Counsel
filed an answering brief to the Respondent's excep-
tions, and the Respondent filed a brief in opposition
to the General Counsel's exceptions.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings and findings,'
but not to adopt certain conclusions of the recom-
mended Order. 2
1. The judge found that the Respondent dispar-
ately enforced its no-solicitation rule. 3 He also
found that the Respondent unlawfully suspended
and then discharged employees Herbekian and Da-
meron based on its disparate enforcement of the
no-solicitation rule. The judge concluded that the
suspensions and discharges violated Section 8(a)(3)
of the Act. We agree with these findings and con-
clusions.
2. The judge found, contrary to the General
Counsel, that the Board's T.R.W.4 decision should
not be given retroactive effect. He therefore de-
clined to find the Respondent's no-solicitation rule
overbroad and invalid, and did not rely on the rule
The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
We agree with the judge that the Respondent violated Sec. 8(a)(1) of
the Act by interrogating its employees concerning their union activities.
We find it unnecessary, however, to rely on the testimony of Charatsri
Maneepanth, and note that her testimony would be cumulative of the tes-
timony on which we do rely.
We correct the judge's inadvertent reference to James "Huttice." The
record shows that the proper surname is "Suttice."
2 We shall order the Respondent to remove from its files any reference
to the unlawful suspensions and discharges of Roxie Herbekian and Sher-
wood Dameron. See Sterling Sugars, 261 NLRB 472 (1982). We shall also
modify the judge's reinstatement language to conform to that traditional-
ly used by the Board.
3 We adopt the judge's decision to the extent he finds that the inci-
dents of permitted nonunion solicitation were not isolated, but do not
rely on the charity breakfast project to support that finding. We also find
it unnecessary to rely on the judge's discussion at sec. II1, A, 4. par. 12,
concerning employee sales of Avon products.
4T.R. W., Inc., 257 NLRB 442 (1981).
itself as an additional basis for finding the suspen-
sions and discharges unlawful. We adopt the
judge's ultimate conclusion but not the underlying
rationale.
The Respondent promulgated and maintained the
following no-solicitation rule:
SOLICITATION OF ANY KIND, IN-
CLUDING SOLICITATION FOR CLUBS,
ORGANIZATIONS, POLITICAL PAR-
TIES, CHARITIES, ETC. IS NOT PERMIT-
TED ON WORKING TIME OR IN CUS-
TOMER AREAS. DISTRIBUTION OF
LITERATURE OF ANY KIND IS NOT
PERMITTED ON WORKING TIME OR
WORKING AREAS. OFF-SHIFT EM-
PLOYEES ARE NOT ALLOWED ON THE
PREMISES.
The rule was lawful when adopted in 1975. See
Essex International, 211 NLRB 749 (1974), which
held that rules prohibiting solicitation and distribu-
tion during "working time" are presumptively
valid. The Board thereafter decided T.R. W., which
held that "working time" rules are presumptively
invalid.
The Board has recently overruled T.R. W. to the
extent that it conflicts with the standards set forth
in Essex. See Our Way, Inc., 268 NLRB 394 (1983).
Relying on Our Way, we find that the Respond-
ent's 1975 no-solicitation rule is lawful on its face.
We therefore conclude that maintaining the rule
did not violate Section 8(a)(1), and that the rule on
its face does not provide a basis for concluding that
the suspensions and discharges of Herbekian and
Dameron were violative of the Act.
3. The judge found that the Respondent violated
Section 8(a)(1) of the Act by promising employees
better benefits if they reject the Union as their col-
lective-bargaining representative.
On 14 June 1981 a conversation took place be-
tween Renee Loustaunau, manager of Les Champs
Restaurant and the Peacock Lounge, and Mary
Shea, a Peacock Lounge waitress. During the con-
versation Loustaunau stated that a union would be
bad for the employees since only waiters and wait-
resses would benefit a little in wages and would
have to pay for union dues and pension funds,
adding that the kitchen help was already paid
union scale. Shea then raised the matter of employ-
ee insurance, expressing dissatisfaction with the Re-
spondent's plan. The judge found that Loustaunau
replied that this is "off the record" and that she did
not want to sound as if she were bribing Shea,
"But I heard that they've been investigating chang-
ing the medical plan." Loustaunau added that she
had heard "a rumor that they had been investigat-
271 NLRB No. 171
1080
RESTAURANT CORP. OF AMERICA
ing since last January a new medical plan. But
these things take time."
The judge found that "[i]mplicit in such remarks
is the message that a union would not improve [the
employees'] lot and a promise that if given a
chance, i.e., without unionization, the Respondent
would improve employee health benefits." The
judge concluded that Loustaunau's remarks violat-
ed Section 8(a)(1) of the Act.
We disagree. Shea raised the employee insurance
issue as well as her dissatisfaction with the Re-
spondent's plant. Thus, it was Shea who prompted
Loustaunau's statement reporting that she had
heard "a rumor" that the Respondent had been "in-
vestigating" a new medical plan since January, i.e.,
prior to the union campaign. In addition, there is
no evidence that Loustaunau's response was un-
truthful, and she also assured Shea that the re-
sponse was not intended to sound like a bribe.
Under all these circumstances, we cannot find that
Loustaunau's statement amounted to a promise of
improved benefits, or that she conditioned any im-
proved benefits on employee rejection of the
Union. We therefore conclude that the Respondent
did not violate Section 8(a)(1) as alleged.
CONCLUSIONS OF LAW
1. Restaurant Corporation of America is an em-
ployer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. Hotel and Restaurant Employees Union, Local
25, Hotel Employees and Restaurant Employees
International Union, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the
Act.
3. By coercively interrogating employees about
their union activities and the union activities of
their fellow employees, the Respondent violated
Section 8(a)(1) of the Act.
4. By selectively and disparately applying its no-
solicitation rule, the Respondent violated Section
8(a)(1) of the Act.
5. By unlawfully suspending and discharging
Roxie Herbekian and Sherwood Dameron, the Re-
spondent violated Section 8(a)(3) and (1) of the
Act.
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Restaurant Corporation of Amer-
ica, Washington, D.C., its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating employees about
their union activities and the union activities of
their fellow employees.
(b) Selectively and disparately applying a no-so-
licitation rule.
(c) Suspending, discharging, or otherwise dis-
criminating against employees for engaging in
union and protected concerted activities.
(d) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act.
(a) Offer Roxie Herbekian and Sherwood Da-
meron immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against them, in the manner set
forth in the remedy section of the judge's decision.
(b) Remove from its files any reference to the
unlawful suspensions and discharges and notify the
employees in writing that this has been done and
that the suspensions and discharges will not be
used against them in any way.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Washington, D.C. places of busi-
ness copies of the attached notice marked "Appen-
dix." 5 Copies of the notice, on forms provided by
the Regional Director for Region 5, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
5 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
1081
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the complaint alle-
gations not specifically found are dismissed.
MEMBER ZIMMERMAN, dissenting in part.
I dissent from my colleagues' reversal of the
judge's finding that the Respondent impliedly
promised to improve employee health insurance
benefits in violation of Section 8(a)(1) of the Act. I
find that a balanced analysis of all the evidence re-
quires adoption of the judge's findings. '
On 9 June 1981, in the midst of a union organiz-
ing drive, union adherents Roxie Herbekian and
Sherwood Dameron were discharged pursuant to
the disparate enforcement of the Respondent's no-
solicitation rule in violation of Section 8(a)(3) and
(I) of the Act. On 14 June Mary Shea, a waitress
in the Peacock Lounge, asked Lounge Manager
Renee Loustaunau why Herbekian and Dameron
were discharged and whether it was because of
their union activity. Hedging, Loustaunau an-
swered that the Respondent did not want a union
because it would represent a personal failure for
her and Eugene Flick, the general manager, both
of whom were new in their jobs. Loustaunau went
on to say that the Union would be bad for employ-
ees; that, since the kitchen help already received
union scale, only the waiters and waitresses would
benefit with slightly higher wages; and, in any
event, that any wage increase would just go back
to the Union for dues and pension funds. Shea said
that her complaint was with the Respondent's ben-
efit package, especially the health insurance plan,
which she characterized as "lousy." While express-
ing hope that she did not appear to be "bribing"
Shea, Loustaunau, in response, offered, "off the
record," that she "heard that they've been investi-
gating changing the medical plan . . . since last
January.... But these things take time." Lous-
taunau said that the new general manager seemed
extremely concerned about employees, and sug-
gested that he be given a chance.
My colleagues find no violation in Loustaunau's
remarks concerning the possibility of a new medi-
cal plan being offered the employees, primarily be-
cause they believe it was "prompted" by an em-
ployee complaint. But their finding ignores the fact
I also dissent from the majority's finding that the Respondent's no-
solicitation rule was not unlawful on its face. Although I agree with them
that Our Way should be applied retroactively, for the reasons set forth in
my dissent in that case, I adhere to the Board's holding in TR. W that
no-solicitation rules couched in terms of "working time" are ambiguous
in meaning and scope, and therefore are unlawful.
that the conversation between Loustaunau and
Shea was initiated by Shea's inquiring whether
Herbekian and Dameron had been discharged for
their union activities. Loustaunau, while not an-
swering the question directly, replied that the Re-
spondent did not want a union, that a union would
be bad for the employees, and that, at best, a union
would benefit only a few. Given this context,
which surely is far different from one stemming
from the mere voicing of a complaint,2 the remarks
of Loustaunau take on a meaning that, as found by
the judge, imply that unionization would not im-
prove the lot of the employees and represent a
promise that, if permitted the opportunity, the Re-
spondent would improve health benefits.
The implication of Loustaunau's statement is not
nullified by the fact that Shea introduced the sub-
ject of health insurance to the conversation. At no
time did Shea ask whether the Respondent was
considering changes in the employee benefit pack-
age or whether there was a chance of improved
health benefits. To the contrary, her comments
were in the nature of a response to Loustaunau's
ruminations as to why Shea and others were inter-
ested in a union. 3 Nothing Shea said compelled
Loustaunau to divulge a heretofore confidential
management plan. Yet, Loustaunau held out the
prospect of relief on the sole aired matter of em-
ployee concern, in the process inviting Shea and
her fellow employees to give the new management
a chance, without the Union, to show its stated
concern for employees.
This conclusion is not negated by the fact that
Loustaunau assured Shea that her remarks were
"not intended to sound like a bribe." No such self-
serving disclaimer of intent can dispell the clear
thrust of Loustaunau's remarks indicating that the
Respondent's employees would do as well, if not
better, without the Union, particularly with respect
to health benefits.
Accordingly, I find, as did the judge, that the
Respondent violated Section 8(a)(1) of the Act by
impliedly promising to improve the employees'
health benefits.
2 Unless of course by "complaint" my colleagues are referring to
Shea's expressed concern that her coworkers had been fired unlawfully.
3 As much as conceded by Loustaunau in her testimony when, on
being specifically asked whether the subject of health benefits was raised
by Shea in the form of a question, she could only answer with assurance
that the subject came up in the context of a discussion about the Union
and that Shea said that employees had a gripe about the Respondent's
benefit plan.
1082
RESTAURANT CORP. OF AMERICA
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT coercively question you about
your union support or activities and the union sup-
port or activities of your fellow employees.
WE WILL NOT selectively or disparately apply
our no-solicitation rule.
WE WILL NOT suspend, discharge, or otherwise
discriminate against any of you for engaging in
protected concerted or union activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Roxie Herbekian and Sherwood
Dameron immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole
for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings,
plus interest.
WE WILL notify each of them that we have re-
moved from our files any reference to their suspen-
sion and discharge and that the suspension and dis-
charge will not be used against them in any way.
RESTAURANT CORPORATION OF AMERICA
DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. The
original charge in Case 5-CA-13407 was filed by Hotel
and Restaurant Employees Union, Local 25, Hotel Em-
ployees and Restaurant Employees International Union,
AFL-CIO (the Union or Charging Party) on June 12,
1981. A first amended charge was filed on July 10, 1981,
and a complaint and notice of hearing thereon issued on
August 26, 1981. An answer thereto was timely filed on
September 2, 1981. An amendment to complaint and
notice of hearing in Case 5-CA-13407 issued on Decem-
ber 21, 1981. The charge in Case 5-CA-13921 was filed
by the Union on December 7, 1981. An order consolidat-
ing cases, amended complaint, consolidated complaint
and notice of hearing in both cases issued on February
16, 1982, alleging violations of Section 8(a)(1) by Restau-
rant Corporation of America (Respondent or the Em-
ployer) in the maintenance of an unlawful overly broad
no-solicitation rule as well as coercive 8(a)(1) statements.
Also alleged were the discharges of Roxie Herbekian and
Sherwood Dameron pursuant to the rule.' An answer
thereto was timely filed on March 1, 1982. Pursuant to
notice, a hearing was held before an administrative law
judge at Washington, D.C., on March 31 and April I and
2, 1982. Briefs have been timely filed by Respondent and
the General Counsel which have been duly considered.
FINDINGS OF FACT
I. EMPLOYER'S BUSINESS
The Employer is a District of Columbia corporation
with an office and place of business in the District of Co-
lumbia, where it is engaged in the operation of food
service facilities at the Watergate complex. During the
past 12 months, the Employer received revenues valued
in excess of $500,000 from the operation of its business.
The complaint alleges, the answer admits, and I find that
Respondent is an employer within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
IlI. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts2
i. Unlawful Interrogation by Richard Sultoni
In early June 1981,3 shortly prior to Dameron's dis-
charge, chef's helper Victor Sangster was approached by
Dameron and given an authorized card. Shortly thereaf-
ter, while he was working, Sangster was approached by
chef Richard Sultoni who asked if anyone had ap-
proached him about joining the Union. Sangster told him
that he had been approached a long time ago by some-
one about the Union. Sultoni replied that he was talking
about recently and Sangster denied it. When asked
"what if" anyone approached him about a union, Sang-
ster told him that he did not know much about unions,
but if anyone approached him he would let him (Sultoni)
know. Sultoni asked him what he thought about the
Union and Sangster replied, "I think it's good and it's
bad." Sultoni did not testify at the hearing and I credit
Sangster's unrebutted account of this incident.
I In the absence of opposition the General Counsel's motion to with-
draw the allegation of the complaint concerning illegally creating the im-
pression of surveillance (par. 5(b)) is granted.
2 There is conflicting testimony regarding some allegations of the com-
plaint. In resolving these conflicts I have taken into consideration the ap-
parent interests of the witnesses; the inherent probabilities in light of
other events; corrboration or lack of it; and consistencies or inconsisten-
cies within the testimony of each witness, and between the testimony of
each and that of other witnesses with similar apparent interests. In evalu-
ating the testimony of each witness, I rely specifically on his or her de-
meanor and make my findings accordingly. And while apart from consid-
erations of demeanor, I have taken into account the above-noted credibil-
ity considerations, my failure to detail each of these is not to be deemed a
failure on my part to have fully considered it. Bishop & Malco Inc., 159
NLRB 1159, 1161 (1966).
3 All dates refer to 1981 unless otherwise indicated.
1083
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In another incident, in early June 1981, prior to Da-
meron's suspension on June 9, Tiep Bui, a cashier, was
solicited by Dameron on behalf of the Union to sign an
authorization card and spoke to her in favor of the
Union. That evening, Sultoni, apparently aware that she
had been given an authorization card, asked her who had
given her the card and she told him that it was Da-
meron. Sultoni asked if she had signed it and she said
that she had not. He asked her where the card was, and
she said that she had forgotten it at home. Once aagin
without the benefit of Sultoni's testimony, I credit Bui's
unrebutted account of this conversation.
Another employee, cashier Charastri Maneepanth, was
approached by Dameron in early June, prior to his dis-
charge. Dameron spoke to her concerning the benefits of
unionization and solicited her to sign an authorization
card. She told him that she would think about it and
kept the card without signing it. The following day Sul-
toni asked her who had given her the authorization card
and she replied that Dameron had given it to her. Noting
once again Sultoni's failure to testify, I credit Manee-
panth's unrebutted version of this incident.
2. Implied promises of better health insurance
benefits by Renee Loustaunau
On Sunday, June 14, Mary Shea, a waitress in the Pea-
cock Lounge, spoke to Renee Loustaunau, manager of
the Les Champs Restaurant and Peaccock Lounge, about
the discharges of Dameron and Herbekian. The conver-
sation took place in the terrace area of the Peacock
Lounge where Loustaunau was having lunch. Shea testi-
fied that she inquired about the reasons that Dameron
and Herbekian were fired and Loustaunau told her it was
because they had broken the Company's no-solicitation
rule. Shea asked if union activity was the reason for their
discharges, and without answering directly, Loustaunau
told her that Respondent did not want a union because it
would be a personal failure for both herself and Eugene
Flick, the new general manager, who were both new in
their jobs, and that a union would be bad for the em-
ployees as well since only waiters and waitresses would
benefit a little in wages and would have to pay for union
dues and pension funds and that the kitchen help was al-
ready paid union scale. Shea raised the matter of em-
ployee insurance, expressing dissatisfaction with Re-
spondent's plan. According to Shea, Loustaunau told her
that this is "of the record" and she did not want to
sound as if she were bribing Shea, "But I heard that
they've been investigating changing the medical plan,"
and that she had heard "a rumor that they had been in-
vestigating since last January a new medical plan. But
these things take time." Loustaunau testified that when
Shea said that Respondent had a "lousy" health insur-
ance plan she told Shea "there had been rumors flying
around for years that they were going to do something
about the health insurance plan." And that she also said
in that respect, "I mentioned the fact that we had a new
manager, and that he seemed to be somebody that was
extremely concerned about employees. And I remem-
bered specifically saying that I thought that the new
management should be given a chance."
Another employee, a waiter named Terrance Mayfield,
testified that he overheard some of his conversation and
that Loustaunau told Shea that the Company was look-
ing into the matter of new insurance policies, but that it
was supposed to be kept quiet, and the employees were
not supposed to know about it and that Respondent
would give information later. Having reviewed the entire
record and noting in particular the corrobative nature of
Mayfield's testimony, I am satisfied that Shea's account
of the conversation is the more accurate.
3. Alleged coercive remarks by Gene Flick
James Huttice had worked as a union waiter for 17
years in Detroit until he came to Washington in April
1981, at which time he transferred into the Union.
He enlisted the help of his brother-in-law DeCarlo
Blackston in a search for work after he arrived in Wash-
ington. It appears that Blackston and Flick had worked
together in the past and in an effort to capitalize on that
relationship, Huttice and Blackston paid a visit to Flick's
office about September 28. Huttice was given an employ-
ment application to fill out by Flick's secretary Margaret
Tickner. Shortly thereafter Flick arrived, and Blackston
and Huttice joined him in his office, where Huttice fin-
ished filling out the application.
Huttice testified that during the course of the conver-
sation Blackston told Flick that Huttice was a union
member and Flick said that he could not use him and
that it was not a "union house." Huttice responded that
he did not need to work in a union house; that he needed
a job. According to Huttice, Flick responded that if it
came to a union vote among the employees, he knew
which way Huttice would vote and therefore could not
use him. Whereupon they shook hands and departed
with Flick remarking that Huttice should leave his appli-
cation with him and Flick would refer him to a "union
house."
Flick testified that the meeting was held at Blackston's
request for the purpose of having Huttice fill out an ap-
plication. Flick testified that despite the fact that he was
aware that there were no job openings at the time, that
the filling out of the application was routinely requested
of all job applicants. 4 With respect to the conversation in
his office concerning Huttice's union membership, Flick
testified that towards the end of the conversation Black-
ston told him that Huttice belonged to the union in Chi-
cago, and Flick jokingly commented that he would
know how he would vote, but Flick denied telling him
that he would not hire him because he was a union
member. According to Blackston, when he mentioned
that Huttice had been a union member, Flick jokingly re-
plied that if they had an election, "I think I would know
how the vote would go," and they all laughed. Blackston
states that he did not hear anything said by Flick about
referring Huttice's application to a union house. Having
reviewed the testimony concerning this incident, I con-
clude that the mutually corrobative accounts of Flick,
4 Tickner also testified that she told Huttice and Blackston when they
arrived that there were no jobs available. Blackston corroborates this tes-
timony.
1084
RESTAURANT CORP. OF AMERICA
Blackston, and Tickner present the more accurate ver-
sion and I credit it, and specifically, I credit Flick's
denial that he told Huttice he would not hire him be-
cause he was a union member.
4. Discharge of Herbekian and Dameron
Roxie Herbekian sought work in early 1981, through
the Union, in an organized restaurant. When she was ad-
vised that such work was not available, she looked for
work in a restaurant with a prospect of being organized.
Upon learning that an organizing effort was underway at
the Watergate complex she applied for work and was
hired there by Respondent on June 20 as a room service
operator where she worked from 6:30 to 10:30 a.m. 5 In
mid-March 1981, she also began working as a cocktail
waitress in the Peacock Lounge where she normally
worked from about 10:45 a.m. to 4 p.m. She normally
had unpaid one-half hour lunchbreaks about 9:30 a.m.
and 3 p.m.
With the approval of the Union, Herbekian began an
organizational effort among the employees at the Les
Champs and Terrace Restaurants as well as the Peacock
Lounge in late May. From late May to early June, Her-
bekian spoke to about 10 employees, including an admit-
ted supervisor, Paul Reynolds, assistant kitchen manager
for Les Champs Restaurant who Herbekian invited to
attend a union organizational meeting to be held on June
2. Reynolds told her that since he was "management" he
would not attend.
It was during this period that Herbekian spoke to
Sherwood Dameron to inquire if he would be interested
in establishing a union. When Dameron responded af-
firmatively, Herbekian told him that she would be in
touch with him later about setting up a union meeting.
On June 2, a union meeting was held at the Howard
Johnson's Restaurant across the street from the Water-
gate complex. The meeting was attended by Ronald
Richardson, secretary-treasurer of the Union, and about
eight employees, including Herbekian and Dameron. An
overall strategy was outlined, and lists of employees
drawn up. Each received a list of employees to contact,
along with authorization cards for the employees to sign.
There were about four employees on Herbekian's list, al-
though she subsequently solicited many more than four
employees on behalf of the Union.
On the morning of Tuesday, June 9, Herbekian was
summoned to Flick's office. Flick asked if she was aware
of Respondent's no-soliciation rule. Herbekian responded
that she was unaware of any no-solicitation rule, despite
the unrebutted testimony of Loustaunau, which I credit,
that the no-solicitation rule was posted by the timeclock,
in the locker room, and on the bulletin board used by the
employees at the Les Champs Restaurant and the Pea-
cock Lounge. Flick told her that she was being given a
3-day suspension pending further investigation for violat-
ing the rule, and gave her a copy of the rule.6 At 11 a.m.
5 Respondent operates food service facilities at the Watergate apart-
ments complex, which includes the Les Champs Restaurant, Peacoock
Lounge, the Terrace Restaurant, a pastry shop, and a delicatessen.
6 The no-solicitation rule reads:
SOLICITATION OF ANY KIND, INCLUDING SOLICITA-
TION FOR CLUBS, ORGANIZATIONS, POLITICAL PAR-
Herbekian punched out. On the following Monday, June
15, Herbekian returned to her job to find that she had
been replaced. She waited for Flick to arrive, and when
he did, Herbekian told him that it appeared that she was
being fired and that she would like to know why, and to
have it in writing. Flick confirmed that she was being
fired for violating the no-solicitation rule but declined to
give it to her in writing. Flick then gave Herbekian her
paycheck and she left.
With respect to Dameron's discharge, as noted above,
at the original organization meeting on June 2, the vari-
ous employees in attendance were each given a list of
employees to solicit. Dameron, like Herbekian, was
given a list of several employees. During the following
week Dameron solicited these employees on behalf of
the Union, and sought to have them sign union authori-
zation cards. Dameron testified that of those employees
contacted by him concerning the Union only two, Bui
and Maneepanth, were on paid worktime.
On Tuesday, June 9, about 2 p.m. Dameron was called
into Flick's office and thereafter Jacques Mury, then
food and beverage manager, joined them. Flick told him
that he was being suspended for 3 days pending further
investigation for talking to employees about the Union
and soliciting union authorization cards since this was a
violation of company policy against solicitation. Thereaf-
ter Dameron left Flick's office and departed the prem-
ises. On the following day Dameron called Flick to in-
quire about his employment status and Flick told him
that he was being fired, but refused to give Dameron any
written statement.
It appears the certain types of what can generally be
described as nonunion soliciting activity took place
among Respondent's employees, despite the existence of
the no-solicitation rule. First there appears to have been
solicitations of contributions for gifts by employees, in-
cluding management employees, on various ocassions
when employees left Respondent's employ. Thus, when
waiter Rene Sanjines and housekeeper Sandy left, money
was collected to purchase gifts for them. The record
supports the conclusion that Loustaunau participated in
these collections, and that the contributions were solicit-
ed mainly on worktime.
Similarly, Loustaunau participated in collecting money
to buy a gift for Sultoni's new born baby and in collect-
ing money to buy a going away gift (a blazer) for the
Les Champs Restaurant assistant manager Bucky Black.7
Loustaunau was also involved in collecting money for
the purchase of birthday cakes for bartender Tim Moran
and waiter Steven Owens. While Loustaunau does recall
her involvement in collecting for Moran's cake, she did
TIES, CHARITIES, ETC. IS NOT PERMITTED ON WORKING
TIME OR IN CUSTOMER AREAS. DISTRIBUTION OF LIT-
ERATURE OF ANY KIND IS NOT PERMITTED ON WORK-
ING TIME OR IN WORKING AREAS.
OFF-SHIFT EMPLOYEES ARE NOT ALLOWED ON THE
PREMISES.
Loustaunau testified that she did purchase the blazer, but did not so-
licit or even contribute to the cost of the blazer, In this regard however,
a review of the testimony convinces me that Shea's testimony that she
contributed 5 at Loustaunau's solicitation for the blazer is accurate, and
I credit her version.
1085
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not recall participating in collecting for Owen's cake.
However, in view of Dameron's testimony that she did
solicit him for a contribution, I conclude that she did
participate in that solicitation also, and further, in view
of the unrebutted testimony of Dameron and Shea, I
conclude that at least some of that solicitation took place
on worktime.
The record also shows that at the suggestion of bar-
tender Steve Evans Loustaunau organized a project to
provide a charity breakfast for some of the derelicts or
"street people" of Washington, D.C., at a local "soup
kitchen." She solicited other employees to participate in
this work and persuaded Respondent to contribute the
food. About a week later, some 7 to 10 employees put on
the breakfast one morning from 6 to 10. It is undisputed
that the employees were late reporting to work and were
not compensated for the lost time. Thus, as a result of
this undertaking, those employees donated their time and
sacrificed whatever amount of pay may have been in-
volved for reporting late.
In connection with the solicitation by employees to
buy Avon products, it appears that Dameron was solicit-
ed several times by Marta Diaz, a pantry employee, to
buy Avon products while he was on the clock. Herbe-
kian testified that she was once shown an Avon book by
several working employees and later was solicited by
Lupe Marta, a pantry employee, while both were on
worktime. Herbekian actually placed an order with her,
but was discharged before the order arrived. Sangster
testified that several female pantry employees kept Avon
books in the kitchen area. While the General Counsel
concedes that none of the evidence establishes direct per-
sonal involvement by supervisors in the solicitation of
Avon products, the frequency and openess of the solici-
tations justify the inference that Responent was aware of
the worktime sale and solicitation of Avon products, par-
ticularly in view of Sangster's testimony that at some un-
specified time after he learned of Dameron's discharge
Sultoni told him that he was to tell the girls selling Avon
products not to let him (Sultoni) see anymore Avon
books or they would lose their jobs. However, since Sul-
toni could have acquired this knowledge of Avon solici-
tation after the discharges, this testimony does not sup-
port any predischarge condonation of Avon solicitation.
In summary, despite the contentions of the General
Counsel, this record does not support, by inference or
otherwise, that Respondent was aware that Avon prod-
ucts were being sold by employees on worktime.
B. Discussion and Analysis
I. Allegations of 8(a)( ) coercion
With respect to Sultoni's conversation with Bui and
Maneepanth, it is clear that interrogation about the cir-
cumstances of their having signed authorization cards
would normally be unlawful as coercive of the employee
rights guaranteed in Section 7 of the Act. Respondent
argues that Sultoni's interrogation was conducted at
Flick's request and was for the purposes of determining
whether the no-solicitation rule had been violated. How-
ever, the testimony of Bui and Maneepanth does not sup-
port this contention and we are without the benefit of
Sultoni's testimony since he did not testify. In these cir-
cumstances, I conclude that Sultoni's interrogation of Bui
and Maneepanth violated Section 8(a)(l) of the Act.
As to Sultoni's conversation with Sangster, once again
this interrogation must be viewed as an unlawful inquiry
into the union activity of an employee in the absence of
special circumstances to justify it. Respondent argues
that the interrogation was so isolated and casual that a
remedial order is not warranted. I do not agree. The
facts fully support the conclusion that Sultoni's interro-
gation of Sangster was coercive in violation of Section
8(a)(1) of the Act, and I so find.
With respect to Loustaunau's remarks to Shea during
the course of their conversation, it is clear that Lous-
taunau was attempting to "play down" the advantages of
unionization. In meeting Shea's contention that the insur-
ance plans were "lousy," Loustaunau told her that a new
plan was under consideration and that the new manage-
ment was concerned about the employees. Neither the
source nor substance of this review were disclosed by
Loustaunau. Implicit in such remarks is the message that
a union would not improve their lot and a promise that if
given a chance, i.e., without unionization, Respondent
would improve employee health benefits. Such represen-
tations have an unlawfully inhibiting effect on the rights
of employees to organize and violate Section 8(a)(1) of
the Act.8
2. Retroactive application of the T.R. W.
Respondent adopted the no-solicitation rule in issue in
1975. It is undisputed that at the time it was adopted it
was lawful under existing Board law. At the time that
Herbekian and Dameron were discharged, the no-solici-
tation rule was still lawful. Some 2 months after the dis-
charge of Herbekian and Dameron for violation of the
rule, the Board concluded in TR. W. that rules prohibit-
ing solicitation during "worktime" or "working time,"
without further clarification, are presumptively invalid.
Under the principle of law enunciated in TR. W., Re-
spondent's no-solicitation rule is presumptively invalid as
prohibiting solicitation on "working time." The question
is whether or not TR. W. should be applied retroactively
to the instant case to make unlawful those actions of Re-
spondent, i.e., the discharges of Herbekian and Dameron,
which were not unlawful at the time that they were
done. In my opinion, retroactive application is inappro-
priate on the facts of this case.
While it is true, as the General Counsel points out,
that new legal tests in some cases have been given retro-
active effect by the Board, an evaluation must be made
to ascertain whether justice is better served by retroac-
tive application or denying it. As the General Counsel
quite properly points out, the standard should be which
course of action produces the fairer result. 10 The Gener-
8 With respect to the allegations that Flick told Huttice he would not
hire him because of his union membership, I have credited Flick in con-
tradicting that this was not the case and accordingly I shall recommend
dismissal of that allegation.
9 T.R. W. Inc., 257 NLRB 442 (1981).
'o Cormier Hosiery Mfill, 243 NLRB 19 (1979); Securities d Exchange
Commission v. Chenery Corp., 332 U.S. 194, 203 (1947).
1086
RESTAURANT CORP. OF AMERICA
al Counsel argues that unless the discriminatees are rein-
stated the result would be that they will have been dis-
criminated against for having exercised their statutory
rights under Section 7 of the Act. However, focusing on
this as controlling, is to disregard the fact that these
were not employee rights at the time they were dis-
charged. To confer these rights retroactively creates the
greater mischief in the circumstances of this case. Indus-
trial harmony requires that an employer be able to estab-
lish solicitation rules in conformity to existing Board law
without doing so at its peril.
3. Disparate enforcement of the no-solicitation rule
As noted above, I have concluded that the Board's de-
cision in TR. W should not be given retroactive effect so
as to make unlawful the discharges of Herbekian and Da-
meron under the rule. Even assuming, as I do, for the
purposes of the discharge allegations that the no-solicita-
tion rule was valid, the issue of disparate enforcement of
the no-solicitation rule in discharging Herbekian and Da-
meron remains. It is clear that where an employer allows
solicitation for various nonunion purposes it may not se-
lectively ban union solicitation or discharge employees
for engaging in such solicitation. An overview of the
Board law appears in Sunny Land Packing Co., 227
NLRB 590, 596 (1976), in the following language:
Where employees, with the knowledge and even
participation of supervisory personnel, are permitted
by an employer to solicit during worktime for vari-
ous charities, functions, or causes to collect money
for churches and fellow employees, and to sell nu-
merous items for personal gain while at the same
time the employer enforces a no-solicitation rule
against employees soliciting on behalf of a union,
such disparate enforcement of the no-solicitation
rule is both unfair and violative of Section 8(a)(1) of
the Act.... Further, the termination of [Employ-
ees] in pursuance of the unlawful enforcement of
the no-solicitation rule is in violation of Section
8(a)(3) and (1) of the Act.
The record in the instant case disclosed that, during
the year preceding Herbekian's and Dameron's dis-
charges, certain types of nonunion solicitations were per-
mitted by Respondent despite the broad prohibition of
the no-solicitation rule.1 1 These included solicitations of
money for birthday gifts, going-away gifts, and, in one
instance, a baby gift for the child of a supervisor, the
chef. Solicitations also included money for birthday
cakes for various employees and supervisors. In one in-
stance employees were solicited to donate their time to
provide a charity breakfast. Loustaunau participated in
some of these solicitations and even initiated some of
them, as set forth more fully above. Thus the record dis-
closes during the year preceding the discharges, there
I The express language of the rule prohibits solicitation and distribu-
tion "of any kind," including, among the prohibit solicitations, "charities,
etc."
were substantial deviations from the strictures of the
posted no-solicitation rule. 2
Respondent contends that these solicitations were iso-
lated incidents of short duration and should be disregard-
ed by the Board in considering the issue of disparate
treatment. I do not agree.
It is undisputed that Herbekian and Dameron were dis-
charged for violating the no-solicitation rule. The record
makes it abundantly clear that Respondent allowed solic-
itation on company time and premises for the various so-
licitations noted above. Further, that Loustaunau, the
restaurant manager, actually initiated and participated in
several of the solicitations. While Respondent may argue
that these solicitations were isolated or inconsequential,
the record simply does not support this contention; they
were numerous and substantial. Nor does the record dis-
close any adverse Respondent reaction to any of these
nonunion solicitations. Against this background of con-
doned employee and supervisory solicitations, in viola-
tion of the rule, Dameron and Herbekian began to orga-
nize for the Union. Like the nonunion solicitations, these
were conducted, at least in substantial part, on worktime.
However, unlike the nonunion solicitations they were
not condoned. Within a week after the union solicitations
began, the no-solicitation rule was promptly and vigor-
ously enforced with the discharges of Herbekian and Da-
meron. It is clear, as a matter of Board and court prece-
dent, that the selective and disparate enforcement of a
no-solicitation rule to prevent union solicitation is unlaw-
ful. Accordingly, I conclude that Herbekian and Da-
meron were discharged pursuant to a disparate enforce-
ment of the no-solicitation rule, in violation of Section
8(a)(3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, as set forth in section III
above, occurring in connection with Respondent's oper-
ations as described in section I above, have a close and
intimate relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices, I shall recommend
that it cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the
Act. I have found that Respondent suspended and dis-
charged Roxie Herbekian and Sherwood Dameron for
reasons which offended the provisions of Section 8(a)(3)
of the Act. I shall therefore recommend that Respondent
make them whole for any loss of pay which they may
have suffered as a result of this discrimination practiced
against them. Backpay will be provided with interest to
be computed in the manner described in F. W. Woolworth
I2 The record does not go beyond the year preceding the discharges in
this regard.
1087
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231
NLRB 651 (1977).13
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
13 See generally Isis Plumbing Co., 138 NLRB 716 (1962).
3. By interfering with, restraining, and coercing em-
ployees in the exercise of the rights guaranteed them in
Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices proscribed by Section
8(a)(1) of the Act.
4. By unlawfully suspending and discharging Roxie
Herbekian and Sherwood Dameron, Respondent en-
gaged in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
[Recommended order omitted from publication.]
1088