Rossmore House

National Labor Relations Board - Board Decisions

Apr 25, 1984

269 N.L.R.B. 1176 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD1176
Rossmore House and Hotel Employees and Restau-
rant Employees Union, Local 11, Hotel Employ-
ees and Restaurant Employees International
Union, AFL-CIO. Cases 31-CA-12388 and 31-
CA-12422
25 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN, HUNTER, AND DENNIS
On 31 March 1983 Administrative Law Judge
James S. Jenson issued the attached Decision. The
Respondent filed exceptions and a supporting brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that 1 and 7 August 19822 the
Respondent interrogated employee Warren Harvey
in violation of Section 8(a)(1) of the Act. We dis-
agree, and for the reasons set forth below, we
overrule existing Board law supporting the judge's
conclusions.3
The Respondent operates a residential retirement
hotel that provides food and lodging to its guests.
On 26 or 27 July employee Warren Harvey con-
tacted union representatives and arranged for an
employee meeting at his house 31 July. In the
meantime Harvey distributed authorization cards to
fellow employees. At the suggestion of a union
representative, a mailgram was sent to the Re-
spondent following the 31 July meeting; the mail-
gram stated that Harvey and another employee
were forming a union organizing committee with
knowledge that their activities were protected
under the Act. The mailgram's purpose was to pro-
tect the rights of the organizing committee.
When the Respondent's manager, Tvenstrup, re-
ceived the mailgram on the morning of I August
he walked into the kitchen with the mailgram and
approached Harvey. According to Tvenstrup's tes-
I 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.
In the absence of exceptions, we adopt pro forma the judge's findings
that the discharge of Warren Harvey and the layoffs of Marvin Fox and
Jonathan Fox did not violate Sec. 8(aX3) and (1) of the Act.
All dates are in 1982 unless otherwise indicated.
a PPG Industries, 251 NLRB 1146 (1980) (not cited by the judge); Ana-
conda Ca., 241 NLRB 1091 (1979); Paceco, 237 NLRB 399 (1978); ITT
Automotive Electrical Products Division, 231 NLRB 878 (1977) (not cited
by the judge).
269 NLRB No. 198
timony,4 he asked Harvey, "Is this true?" Harvey
answered affirmatively, and Tvenstrup said, "Okay,
thank you," and started walking away. Harvey
said, "I am sorry; it is nothing personal," and
Tvenstrup said "Okay," and proceeded to his
office. Tvenstrup testified that he had been un-
aware of any union activity and did not believe the
mailgram when he received it.
Harvey testified that Tvenstrup walked into the
kitchen waving the mailgram. His version is as fol-
lows:
He said, "What is this about a union?" . . . . I
told him, "That's right about the union. We're
going to have a union because of the lack of
benefits, lack of insurance, lack of job security,
vacations without pay" .... After I told him
that, he said that Mr. and Mrs. Tsay were not
going to like it and that they would fight it,
have to fight it to the hilt, and I said, "Well,
it's nothing personal. We just want better con-
ditions." And he said, "Well, as manager, I
will have to fight it too."
The next incident took place 7 August. Accord-
ing to Harvey's credited testimony, he was leaving
the facility after work when the Respondent's
owners, the Tsays, approached him. Mr Tsay
stated, "The manager tells me you're trying to get
a union in here," and asked why. Harvey replied
that it was "because of the low pay, no benefits
and lack of job security." Tsay then asked whether
the Union charged a fee to join and, when Harvey
said yes, Tsay said he would talk to the manager
about it.
The judge found the Respondent's statements in
both instances to be unlawful interrogations under
Section 8(a)(1) of the Act, citing Paceco5 and Ana-
conda Co. 6 In Paceco7 the Board stated:
[A]n interrogation of an employee's union
sympathies or his reasons for supporting a
union need not be uttered in the context of
threats or promises in order to be coercive.
The probing of such views, even addressed to
employees who have openly declared their
prounion sympathies, reasonably tends to inter-
fere with the free exercise of employee rights
under the Act, and, consequently, is coercive.
4 The judge stated that he was unable to conclude whether Tven-
strup's or Harvey's version of the conversation was the more accurate,
but found that under either witness' testimony his conclusion would be
the same.
6 237 NLRB 399 (1978), vacated in part and remanded in part 601 F.2d
180 (5th Cir. 1979), supp. dec. 247 NLRB 1405 (1980).
6 241 NLRB 1091.
237 NLRB at 399-400.
ROSSMORE HOUSE
More recently, in PPG Industries,8 the Board held
that questions concerning union sympathies, even
when addressed to open and active union support-
ers in the absence of threats or promises, are inher-
ently coercive.
Before the line of cases culminating in the PPG
decision,9 the Board had declined to find violations
in such circumstances. In B. F. Goodrich Footwear
Co.,10 the Board found no violation when a super-
visor asked two employees who were open union
partisans how they felt about the union. The Board
noted that no other unlawful conduct occurred
with respect to either employee and concluded that
"the nature of the inquiry, in the total context of
all the circumstances here, is [not] sufficient to es-
tablish the kind of interference, restraint, or coer-
cion which we have found to constitute a violation
of Section 8(a)(1) in quite different contexts." Simi-
larly, in Stumpf Motor Co.,1I the Board held that
the respondent's asking "a self-proclaimed and
known union adherent" what he thought of the
union did not violate Section 8(a)(1), but was
merely a conversation opener.
In PPG, however, the Board overruled Stumpf
and B. F. Goodrich. The PPG Board stated, "The
type of questioning at issue conveys an employer's
displeasure with employees' union activity and
thereby discourages such activity in the future. The
coercive impact of these questions is not dimin-
ished by the employees' open union support or by
the absence of attendant threats." 1
We will no longer apply the PPG standard. We
conclude that PPG improperly established a per se
rule that completely disregarded the circumstances
surrounding an alleged interrogation and ignored
the reality of the workplace. Such a per se ap-
proach had been rejected by the Board 30 years
ago" 3 when it set forth the basic test for evaluating
whether interrogations violate the Act: whether
under all of the circumstances the interrogation
reasonably tends to restrain, coerce, or interfere
with rights guaranteed by the Act. Our view is
consonant with that expressed by the Seventh Cir-
cuit Court of Appeals in Midwest Stock Exchange v.
NLRB:14
It is well established that interrogation of
employees is not illegal per se. Section 8(aX1)
of the Act prohibits employers only from ac-
tivity which in some manner tends to restrain,
251 NLRB 1146.
9 See cases cited in PPG, 251 NLRB at 1147 fn. 5, and in fn. 3 of this
decision.
10 201 NLRB 353 (1973).
'" 208 NLRB 431, 432 (1974).
" 251 NLRB at 1147.
" Blue Flash Express, 109 NLRB 591 (1954).
14 635 F.2d 1255, 1267 (7th Cir. 1980).
coerce or interfere with employee rights. To
fall within the ambit of § 8(aX)(1), either the
words themselves or the context in which they
are used must suggest an element of coercion
or interference.
In Graham Architectural Products v. NLRB,' 5 the
Third Circuit recently adopted the same approach,
as follows:
In deciding whether questioning in individ-
ual cases amounts to the type of coercive in-
terrogation that section 8(a)(1) proscribes, one
must remember two general points. Because
production supervisors and employees often
work closely together, one can expect that
during the course of the workday they will
discuss a range of subjects of mutual interest,
including ongoing unionization efforts. To
hold that any instance of casual questioning
concerning union sympathies violates the Act
ignores the realities of the workplace. More-
over, as the United States Supreme Court rec-
ognized in NLRB v. Gissel Packing Co., 395
U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969),
the First Amendment permits employers to
communicate with their employees concerning
an ongoing union organizing campaign "so
long as the communications do not contain a
threat of reprisal or force or promise of bene-
fit." Id. at 618, 89 S.Ct. at 1942. This right is
recognized in section 8(c) of the Act.'6 If sec-
tion 8(aX)(1) of the Act deprived the employers
of any right to ask non-coercive questions of
their employees during such a campaign, the
Act would directly collide with the Constitu-
tion. What the Act proscribes is only those in-
stances of true "interrogation" which tend to
interfere with the employees' right to organize.
After careful consideration, we conclude, in
agreement with Member Hunter's dissent in Don-
nelly Mfg. Co.,'7 that PPG improperly establishes a
per se rule that completely disregards the circum-
stances surrounding an alleged interrogation' 8 and
ignores the reality of the workplace. Accordingly,
we overrule PPG and similar cases'9 to the extent
they find that an employer's questioning open and
active union supporters about their union senti-
ments, in the absence of threats or promises, neces-
la 697 F.2d 534, 541 (3d Cir. 1983).
16 Cf. Eagle Comtronics, 263 NLRB 515 (1982).
17 265 NLRB 1711 (1982).
16 See also Gassen Ca v. NLRB, 719 F.2d 1354 (7th Cir. 1983).
19 See cases cited in PPG, 251 NLRB 1147 fn. 5, and in fn. 3 of this
decision.
1177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sarily interferes with, restrains, or coerces employ-
ees in violation of Section 8(a)(1) of the Act. 20
In this case, Harvey, an active union supporter,
openly declared his union ties by means of a mail-
gram to the Respondent. We find no violation of
Section 8(a)(1) of the Act under either version of
the conversation between Tvenstrup and Harvey
concerning the contents of the telegram and Tven-
strup's intention to oppose the Union. Nor do we
find any violation regarding the second incident
when the Respondent's owner asked Harvey why
he wanted a union and wlhether the Union charged
a fee.2 1 Under the totality of the circumstances, we
find the Respondent's questioning of Harvey to be
noncoercive, and therefore we shall dismiss the
complaint in its entirety.
ORDER
The complaint is dismissed.
MEMBER ZIMMERMAN, dissenting in part.
I dissent from the overruling of PPG Industries.'
I reject my colleagues' claim that PPG established
a per se rule that disregards the circumstances sur-
rounding an alleged interrogation and ignores the
"reality of the workplace." On the contrary, it is
my colleagues who have established a per se rule
by their decision in this case. They hold that,
absent an accompanying threat of reprisal or prom-
ise of benefit, the interrogation of an open union
adherent will not violate Section 8(a)(1). Unlike the
PPG standard, this new per se rule gives no weight
to the setting and nature of the interrogation. It ig-
nores the reality that employers sometimes are
subtle coercion during an organizing campaign and
fails to recognize that even open union adherents
may be intimidated by such coercion.
As a general rule, an employer's questioning of
an employee concerning union sentiments is
viewed as having a reasonable tendency to inter-
fere with, restrain, or coerce the employee in exer-
'o Our dissenting colleague mischaracterizes our holding here by stat-
ing that we will not weigh the setting and nature of interrogations in-
volving open and active union supporters. Experience convinces us that
there are myriad situations in which interrogations may arise. Our duty is
to determine in each case whether, under the dictates of Sec. 8(aXI),
such interrogations violate the Act. Some factors which may be consid-
ered in analyzing alleged interrogations are: (1) the background; (2) the
nature of the information sought; (3) the identity of the questioner; and
(4) the place and method 6f interrogation. See Bourne v. NLRB, 332 F.2d
47 (2d Cir. 1964). These and other relevant factors are not to be mechani-
cally applied in each case. Rather, they represent some areas of inquiry
that may be considered in applying the Blue Flash test of whether under
all the circumstances the interrogation reasonably tends to restrain,
coerce, or interfere with rights guaranteed by the Act.
"1 Unlike our dissenting colleague, we find Tsay's parting statement to
Harvey that he "would talk to the manager about it" did not alter the
noncoercive context of the conversation and was not, under the circum-
stances, an implied threat or promise of benefit.
1 251 NLRB 1146 (1980).
cising statutory rights. This presumption is based
on a fundamental premise of the Act: the imbalance
of power between an employer and an individual
employee. Because the employer posesses virtually
complete ecomomic power over an unrepresented
employees, the Act seeks to prevent any conduct-
such as inquiring as to an employee's union sympa-
thies-which suggests that an employee's future
treatment by management may be affected by his
views on unionization.
In PPG an active and known union supporter
was asked by his supervisor whether he would still
be for the union if he had to do it over again.
When the employee did not respond, the supervi-
sor repeated this question twice, and also asked the
employee whether he had had an opportunity to
sign a petition for a new election. A different su-
pervisor asked another open union adherent what
she thought the union could do for employees. The
same employee subsequently was asked by a third
supervisor what she thought the union would ac-
complish. In addition, a fourth supervisor asked a
third open union supporter why she was for the
union. All these conversations took place at the
employees' work stations.
The Board found (251 NLRB at 1147) that these
interrogations constituted "probing into employees'
union sentiments which, even when addressed to
employees who have openly declared their union
adherence, reasonable tend to coerce employees in
the exercise of their Section 7 rights." The Board
added that the questioning at issue conveyed the
employer's displeasure with the employees' union
activity and thereby discouraged such activity in
the future.
I do not view PPG as setting forth a per se rule.
Instead, I believe that the decision simply recog-
nized that just because an employee is an open
union adherent does not efd the inquiry into the
lawfulness of an emploeyr's interrogation of him.
Such questioning necessarily calls upon an employ-
ee to defend his Section 7 right to support a union.
In most cases, there is no justification for putting
an employee in such a defensive position, particu-
larly since these conversations serve no valid em-
ployer purpose. As was said by the administrative
law judge who was affirmed by the Board in Ana-
conda Co.:2
The only purposes for such questioning of em-
ployees are: (1) to ascertain their reasons for
union support so that the employer may argue
the lack of merit for their reasons or (2) to de-
termine their reasons so that he may take cor-
s241 NLRB 1091, 1094 (1979).
1178
ROSSMORE HOUSE
rective action, which is in itself an unlawful
promise of benefits to refrain from supporting
the union.
Nor has the Board applied PPG in a per se
manner. In Harrison Steel Castings Co.3 the Board
relied on PPG to find that an employer violated the
Act when a supervisor asked an employee why he
was wearing a union insignia and whether "the
Company had done anything to offend him." In
finding the violation, however, the Board empha-
sized that the conversation was not isolated but
had to be viewed in context witht the employer's
other 8(a)(1) violations. Thus, it is clear that the
Board's reliance on PPG in Harrison Steel involved
an examination of all the surrounding circum-
stances. Further, in Brown & Lambrecht Earth
Movers,4 the Board found no violation in a supervi-
sor's asking an employee why he wanted a union.
The Board relied on the fact that the conversation
was one of many between the supervisor and em-
ployee, most of which were initiated by the em-
ployee and often included solicitations of the
other's union sentiments. (The Board noted that the
supervisor himself was a union member.) Thus the
Board decided that, even though the supervisor
was the initiator of the conversation in question,
the exchange was casual, was part of a larger dia-
logue between the parties, and did not manifest the
kind of discouragement of union activities which
PPG seeks to prevent.
Moreover, there is no basis for concluding that
the Board ignored the circumstances surrounding
the interrogations in the three cases preceding PPG
which my colleagues also overrule today. In Ana-
conda Co.,6 three active and known union support-
ers individually were asked by three different su-
pervisors why they wanted, or what they thought
of, the union; Paceco6 involved three supervisors'
separate questioning of two employees about their
union adherence; and ITT Automotive Electrical
Products Division? involved two separate instances
of supervisory interrogation of employees regard-
ing their wearing of union buttons.
My colleagues cite decisions by the Third and
Seventh Circuits in support of their overruling of
PPG. The circuit courts, however, have not univer-
sally rejected the PPG principle. In TRW-United
Greenfield Division v. NLRB 8 the Fifth Circuit en-
forced the Board's finding coercive a supervisor's
262 NLRB 450 (1982).
267 NLRB 186 (1983).
8241 NLRB 1091 (1979).
6 237 NLRB 399 (1978).
7 231 NLRB 878 (1977).
8 637 F.2d 410 (1981).
interrogation of an open union adherent. The court
stated (at 418):
That [the employee] publically exhibited his
support of and leadership in the Union does
not alter the suggestion of coercion. Although
an employee has openly declared his support
for the union, the employer is not thereby free
to probe directly or indirectly into his reason
for supporting the union ITT Automotive Elec-
trical Products Division, 231 NLRB 878 (1977).
"[S]uch probing tends to have a coercive
effect upon employees, whether or not the em-
ployees have openly declared their support for
a union." Id.; see also Paceco, A Division of
Freuhauf Corp., 237 NLRB 399, 400, vacated
on other grounds, 601 F.2d 180. .... [The em-
ployee] was knowledgeable and may well not
have been coerced in this confrontation, which
maintained a facade of friendliness. However,
if an interrogation is coercive in nature it
makes no difference that actual coercion was
not achieved in the particular instance. See
Sturgis Newport Bus. Forms, Inc. v. NLRB, 563
F.2d at 1256.
The court thus affirmed the Board's consistent po-
sition, repeatedly approved by the judiciary, that
an employee's subjective state of mind is not proba-
tive evidence of employer restraint and coercion
which is violative of Section 8(a)(1). 9
My colleagues' suggestion that Section 8(c) of
the Act supports their holding today is wholly
without merit. It is well established that an em-
ployer, in questioning employeees as to union senti-
ments, is not expressing views, argument, or opin-
ion within the meaning of Section 8(c), but rather
has the purpose or ascertaining the views of the
person being questioned.10
In sum, I do not view PPG as established a per
se rule, but rather as setting forth a policy which
best protects the statutory guarantee of employee
free choice regarding unionization, whether the
employees are open and active union supporters or
not. Consistent with my view that PPG requires an
examination of the surrounding circumstances, I
would find, in agreement with my colleagues, that
manager Tvenstrup's questioning of employee
Harvey I August did not violate the Act. On that
date, Tvenstrup received a mailgram from the
Union advising that employee Harvey and others
had formed an in-plant organizing committee. Ac-
* See, e.g. Fairleigh Dickinson University, 723 F.2d 1468 (10th Cir.
1983).
'o See, e.g., Struksnes Construction Co., 165 NLRB 1062 fn. 8 (1967);
NLRB v. Lorben Corp., 345 F.2d 346 (2d Cir. 1965).
1179
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cording to Harvey's testimony, 1 that morning
Tvenstrup, with mailgram in hand, walked up to
him in the facility's kitchen and said, "What is this
about a union?" Harvey replied, "That's right
about the Union. We're going to have a union be-
cause of the lack of benefits, lack of insurance, lack
of job security, vacations without pay." Tvenstrup
responded that the Respondent's owners were not
going to like it and that they would fight it to the
hilt. Harvey remarked, "Well, it's nothing personal.
We just want better conditions." Tvenstrup then
stated, "Well, as manager, I will have to fight it
too." 12
This conversation reasonably can be construed as
simply a spontaneous attempt to seek confirmation
of the mailgram which Tvenstrup had just received
from the Union. Although this iquiry indicated the
Respondent's displeasure with Harvey's union in-
volvement, it lacked the deliberation and certainty
that characterized the persistent interrogations
found unlawful in PPG. I therefore would reverse
the judge and dismiss this allegation.
The 7 August exchange between owner Tsay
and Harvey is, however, a different matter. On that
day, Tsay stopped Harvey as he was leaving the
facility after work and said to him, "The manager
tells me you're trying to get a union in here," and
asked Harvey why. Harvey answered that he was
trying to get a union because of the "low pay, no
benefits and lack of job security." Tsay then asked
whether it was true that the Union charged a fee to
join. When Harvey replied that it was, Tsay said
he "would talk to the manager about it."
Unlike my colleagues, I would find that Tsay's
questioning of Harvey was indeed violative of Sec-
tion 8(a)(1). Tsay was the owner of the Company,
not simply a supervisor as was Tvenstrup. Tsay al-
ready knew of the mailgram's authenticity, and his
comments to Harvey came almost a week after the
manager informed him of Harvey's role on the in-
plant organizing committee. Not only did Tsay ac-
knowledge the fact of Harvey's union support, he
made it clear that he had discussed the matter with
Tvenstrup and he asked the employee why he was
doing such a thing. Tsay's interrogation 7 August
went further than Tvenstrup's innocent, spontane-
I I Tvenstrup and Harvey offered different accounts of what was said
during this conversation. The judge could not decide which version was
more accurate, but determined that under either account the words
spoken by Tvenstrup were tantamount to asking Harvey if he was on the
Union's inplant organizing committee, and that such questioning violated
Sec. 8(a)(1I). I also find that, in the circumstances of this case, there is no
material difference between the two versions, but I would find no viola-
tion under either version.
12 Tvenstrup's version of the incident is as follows: With the mailgram
in his hand he walked up to Harvey and said, "Is this true?" After
Harvey answered, "Yes," Tvenstrup replied, "Okay, thank you." As
Tvenstrup walked away, Harvey said to him, "I am sorry, it is noting
personal." The manager responded, "Okay," and then went to his office.
ous inquiry of I August, and implied possible re-
prisals (or promises of benefits) when he told
Harvey that he "would talk to the manager about
it."
My colleagues, however, attach no significance
to any of these surrounding circumstances. For
them it is enough that Harvey had openly demon-
strated his union support to lead to the conclusion
that he could not be coerced, restrained, or inter-
fered with by question about his union sympathies,
absent a blatant threat of reprisal or promise of
benefit.13 For the reasons stated above, I cannot
subscribe to that position.
Accordingly, I perceive no need to overrule
PPG in order to find that, in its context, Manager
Tvenstrup's interrogation of employee Harvey was
not unlawful. On the other hand, I would find that,
under the circumstances, owner Tsay's questioning
of Harvye violated the Act. I join in the majority's
decision only insofar as it reverses the judge's find-
ing of an 8(a)(1) violation in connection with the I
August conversation and dismiss that complaint al-
legation.
Is There is no basis for the majority's suggestion that the Board's deci-
sion in Blue Flash Express 109 NLRB 591 (1954), excuses owner Tsay's
interrogation here. Blue Flash involved an employer, faced with a union's
claim of majority status, polling employees on whether they had signed
union cards. Unlike here, in Blue Flash the employer communicated its
purpose in questioning the employees-a purpose which was legitimate in
nature-to the employees and assured them that no reprisal would take
place. Tsay's interrogation had no valid purpose, and he gave no legiti-
mate explanation to Harvey for his questioning nor any assurance against
reprisal.
DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge. This
matter was heard in Los Angeles, California, on October
26 and November 1 and 2, 1982.' The consolidated com-
plaint issued on September 21 pursuant to a charge filed
in Case 31-CA-12422 on August 26. The consolidated
complaint alleges two incidents of unlawful interrogation
and the unlawful layoff or discharge of three employees.
The Respondent denies the unlawful interrogations and
contends two of the alleged discriminatees were laid off
for economic reasons and that the third was discharged
for cause. All parties were afforded full opportunity to
appear, to introduce evidence, and to examine and cross-
examine witnesses. Briefs were filed by the General
Counsel and the Respondent and have been carefully
considered.
On the entire record in the case, including the demean-
or of the witnesses, and having considered the posthear-
ing briefs, I make the following
I All dates hereafter are in 1982 unless otherwise stated.
1180
ROSSMORE HOUSE
FINDINGS OF FACT
I. JURISDICTION
The Respondent denies the Board has jurisdiction over
its operations. The Respondent, a sole proprietorship, is
engaged in the operation of a retirement hotel in Los
Angeles, California, providing food and lodging to its
guests. The parties stipulated that the Respondent's gross
receipts in the year 1982 exceeded $500,000. The parties
further stipulated to the receipt in evidence of documents
from certain of the Respondent's suppliers,2 which dis-
close the following: (I) For the 4 weeks ending March
19, 1982, and through November 5, 1982, the Respond-
ent's total estimated purchases from Glenco/Sysco Food
Service Company, Maywood, California, totaled
$30,545.26. Glenco/Sysco estimated 49 percent of said
purchases, or $14,967.18 came from locations other than
California. s (2) Within the 12-month period preceding
November 2, 1982, the Respondent purchased from Lee
Zeigler & Son Provisions, Inc., La Crescenta, California,
petite bananas of the value of $S1,974.55,4 which said
company purchased from Pacific Banana in Los Angeles.
The bananas were imported by United Fruit Company
from Panama, Costa Rica, Honduras, or Guatamala.5 (3)
While there has been no breakdown with respect to the
actual amount purchased within the past 12-month
period, the Respondent purchased cheeses from the Car-
nation Company, Los Angeles, California, during the
period from August 1, 1981, through October 31, 1982,
which were manufactured in Minnesota, totaling in
excess of $1,100.8
Thus, it is clear that the Respondent's annual pur-
chases of food products which move in interstate com-
merce far exceeds de minimis. See e.g., Marty Levitt, 171
NLRB 739 fn. 6 (1968). Accordingly, it is found that the
Respondent's operations affect commerce within the
meaning of Section 2(6) and (7) of the Act, and, as its
annual gross revenues exceeds $500,000, that it will effec-
tuate the policies of the Act to assert jurisdiction herein.
Penn-Keystone Realty Corp., 191 NLRB 800 (1971); Park-
view Gardens, 166 NLRB 697 (1967).
II. THE LABOR ORGANIZATION INVOLVED
It was stipulated and is found that Hotel Employees
and Restaurant Employees Union, Local 11, Hotel Em-
ployees and Restaurant Employees International Union,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
III. ISSUES
1. Whether, on August 1 and 7, 1982, the Respondent's
agents unlawfully interrogated an employee concerning
his union activities, sympathies, and desires.
2. Whether, on August 5, 1982, the Respondent laid
off Jonathan and Marvin Fox for engaging in union ac-
tivities.
2 G.C. Exhs. 12-17.
s G.C. Exh. 13.
4 G.C. Exh. 11.
6 G.C. Exh. 12.
6 G.C. Exh. 16.
3. Whether, on August 18, 1982, the Respondent dis-
charged Warren Harvey for engaging in union activities.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Setting
The Respondent is engaged in the operation of a resi-
dential retirement hotel in Los Angeles, California. Shyr-
Jim Tsay, an individual, purchased the hotel on January
5. While not definitely stated in the record, it appears
that the monthly occupancy charge includes meals. At
the time Tsay took over the operation, meals were
served from the kitchen by waiters and waitresses. At
the outset, Tsay concluded the costs associated with op-
erating the hotel and restaurant were too high, and
therefore engaged Ronald Tvenstrup, herein called
Tvenstrup, and his wife Roddi, who specialized in hotel
renovations and reorganizations, as managers to straight-
en out any problems. The Tvenstrups commenced on
May 15 and immediately undertook an investigation into
the operating costs of the hotel and restaurant facilities.
They concluded that a number of cost-cutting measures
were in order, including conversion of the restaurant to a
buffet or cafeteria type operation where those hotel ten-
ants who were physically capable would be served from
a steam table instead of utilizing waiters and waitresses
to serve each of the tables. After the conversion, a few
waiters or waitresses would still be needed to serve those
tenants who were not physically capable of getting their
own food. The conversion was designed to reduce costs
by decreasing the number of employees and eliminate
food waste. The conversion from table service to buffet
service was made the last week in July and resulted in
the elimination of six waiters and waitresses on August 5.
The General Counsel alleges that two of the waiters,
Marvin and Jonathan Fox, were laid off because of their
union interests. The General Counsel also alleges that
Warren Harvey was unlawfully interrogated on two oc-
casions in the first week of August and was unlawfully
discharged on August 18 because of his union activities.
The parties stipulated that Tsay and Tvenstrup are the
Respondent's agents, and the record so shows. Roddi
Tvenstrup comanaged the operation along with her hus-
band. Mary Moch is the supervisor and head cook of the
kitchen department. The record establishes her statutory
supervisory authority. Eura Dell Williams is the dining
room supervisor on the morning shift, and Victoria Wil-
liams on the second shift which covers the evening meal.
Neither Eura Dell Williams nor Victoria Williams is al-
leged to be a statutory supervisor, nor does the record
establish that either is. It is well established that the title
of supervisor does not make one a statutory supervisor.
Harvey, who had been hired by Moch in 1981, worked
the first shift covering breakfast and lunch 3 days a
week, and the second shift which included dinner twice
a week. He rotated with Fidel Diaz. Harvey testified
that he had experience as a cook prior to being hired by
Moch. Moch, however, testified that, contrary to Har-
vey's claim, she "found out later that he really was not a
cook," in that he could not take a menu and prepare a
meal properly. Consequently, she had to show him hdw,
1181
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and most of the time would prepare the meat in his
place, leaving him to prepare vegetables and desserts.
There was considerable testimony concerning the fact
that several of the resident guests were vegetarians. Spe-
cial meals were to be prepared for vegetarians on re-
quest, and they were to be served a baked potato with
their dinner every night. Harvey was responsible for
seeing that the special meals and baked potatoes were
available for the vegetarians.
B. Decision to Terminate Harvey
Roddi Tvenstrup testified that in late May or early
June, at the first supervisory meeting held with the new
managers, she was informed that Harvey's cooking was
"dreadful." She also testified she received complaints
from waitresses that Harvey ignored their requests and
was rude and mean and that they did not want to work
with hiru.7 Mrs. Tvenstrup testified that in June she per-
sonally complained to Harvey about the size of a baked
potato and soggy vegetables which he had served one of
the vegetarians and asked him to prepare a grilled cheese
sandwich in their place. The following day the guest,
Mrs. Blyfeld, informed Mrs. Tvenstrup that she had not
received the sandwich, that she was very upset about it,
and was "going to have to leave." Most of Harvey's
problems stemmed from the fact he failed to make substi-
tutes for the vegetarians. Mrs. Tvenstrup testified there
were numerous complaints that Harvey failed to strain
vegetables or salads when putting them on the same
plate with sandwiches, resulting in the latter becoming
soggy; that he served meat to a vegetarian, and when it
was returned for another plate, he removed the meat but
left the juice from the meat on the plate, which was ap-
parently offensive to the vegetarian. He would only
make up a new plate for a vegetarian if Mrs. Tvenstrup
personally insisted on it. Victoria Williams testified that
she told Harvey of complaints about his cooking, and
that his response was "if they want to eat, eat it; if they
don't, don't"; that he failed to save baked potatoes for
the vegetarians and also neglected to keep them warm;
that when she complained about the fact potatoes were
cold, he responded he did not care; that he refused to
prepare substitutes and refused to put out two salad
dressings for the guests although he was supposed to.
She reported Harvey's deficiencies to the Tvenstrups at
four or five supervisory meetings.
Moch testified there were complaints about soggy
food on the plates, and that Mrs. Tvenstrup asked her to
speak to Harvey on two or three occasions in July. Con-
sequently, she told Harvey to use a "slither spoon" to
drain the juice. She testified that when he failed to keep
baked potatoes in reserve for the vegetarians, she or-
dered that he bake 10 and later 20 potatoes so the vege-
' Corroborated by waitress Novart (Nora) Kasbarian, who testified
Harvey was uncooperative with respect to giving vegetarians substitute
plates, removing unwanted items from plates, keeping baked potatoes hot
and saving them for the vegetarians, and using only one kind of salad
dressing instead of two. She testified she complained about these matters
to supervisor of night waitresses Victoria Williams and to Mrs. Tven-
strup, both before and after the steam table was installed. Mrs. Tven-
strup, testified waitresses Shakhi Koloian, Hong Tran and Thanh Huyhn
and Evening Supervisor Victoria Williams also complained about him.
tarians would be sure to get one. After the switch from
table to cafeteria service, there were still complaints the
baked potatoes were not reserved for the vegetarians. At
a supervisory meeting on Thursday morning, July 29,8
Moch was instructed to inform Harvey that, if he could
not give the vegetarians what they wanted, that he
would be terminated. About 10:30 that morning she told
Harvey, in Eura Dell Williams' presence, that Tvenstrup
had said that if he did not give the vegetarians what they
wanted that he was going to be terminated. Harvey's re-
sponse was to the effect that he did not care, that they
could "take this little chicken job and shove it." Moch's
testimony was corroborated by Eura Dell Williams.9
The night of July 29, Mrs. Blyfeld, a vegetarian, com-
plained to Tvenstrup that she was unable to "get a meal
here. And I am paying good money to stay in this hotel
.... I just want to be fed," and stated she was sending
in a 30-day notice of her intent to leave.' 0 The following
morning, Saturday, July 30, Mr. and Mrs Tvenstrup de-
cided to discuss the matter with Eura Dell Williams and
Moch at the end of the shift. Accordingly, about 2:30
p.m. that afternoon the Tvenstrups, Eura Dell Williams,
Moch, and Terry Patterson met in the dining room. Ac-
cording to the mutually corrobative testimony, Mrs.
Tvenstrup stated she was still having trouble with
Harvey; Moch asked if Mrs. Tvenstrup wanted her to
talk to Harvey again; and Mrs. Tvenstrup stated no, that
she was going to have to let him go. Tvenstrup then told
Patterson to go to the office and get out a termination
slip, which she did, and which he filled out immediate-
ly.': He instructed Patterson to call Mr. Tsay to make
arrangements for him to sign Harvey's final paycheck.
Unable to reach Tsay, the only person authorized to sign
checks, Tvenstrup decided to wait until Monday to ter-
minate Harvey so that he could give Harvey his final
paycheck at the same time.12 Tvenstrup claimed no
knowledge of any union organizing activities at the time
the decision was made to terminated Harvey, nor did the
General Counsel produce any evidence of prior knowl-
edge.
C. August I Interrogation
Harvey testified he first contacted union representa-
tives on or about July 26 or 27 and, pursuant to their re-
quest, arranged for an employee meeting at his house on
Saturday, July 31.' s According to him, between the
meeting with the union representatives and the July 31
meeting at his house, he distributed authorization cards
to fellow employees, over half of whom signed them.
The July 31 meeting was attended by two union business
representatives, Harvey and Jonathan and Craig Fox,
8 While Moch did not recall the date, I conclude from the testimony of
others in attendance that the meeting was at 10 a.m. on July 29.
9 While Harvey denied receiving any complaints, he acknowledged
that Moch once told him "that in some areas I still needed some supervi-
sion."
10 Mrs. Blyfeld left on October 30.
" R. Exh. I.
" Tvenstrup testified he believed he was legally required to pay an
employee in full at the time of termination.
I" The decision to terminate Harvey, as has been shown, was made the
afternoon of July 30.
1182
ROSSMORE HOUSE
both waiters.' 4 One of the union representatives suggest-
ed sending a telegram to the Respondent in order to pro-
tect the rights of the organizing committee. Accordingly,
the following mailgram was sent to the Respondent:
Please be advised that Warren Harvey and Jonathan
Fox and others have formed an inplant organizing
committee. We have done so knowing that this is a
protected activity under the National Labor Rela-
tions Act.
Sincerely,
Stephen Beck
Hotel and Restaurant Employees Local 11
321 South Bixel St.
Los Angeles, CA 90017
Tvenstrup received the mailgram about 9:30 a.m.,
Sunday, August 1. Harvey was working the breakfast-
lunch shift. What transpired thereafter is in dispute.
Tvenstrup testified that he had not heard of any union
activity around the hotel, and did not believe the tele-
gram. His account of what transpired thereafter is:
I walked out to the kitchen. I had the telegram in
my hand. And Warren was standing there. I walked
up to him and I said, "Is this true?" And he said,
"Yes." And I said, "Okay, thank you." And I
turned around and walked away. As I walked
away, Warren said to me, "I am sorry, it is nothing
personal." And I said, "Okay." And then I went
over to my office.
Harvey's version was that Tvenstrup walked into the
kitchen waving the mailgram and: "He said, 'What is this
about a union?' . . . . I told him, 'That's right about the
union. We're going to have a union because of the lack
of benefits, lack of insurance, lack of job security, vaca-
tions without pay' . . . . After I told him that, he said
that Mr. and Mrs. Tsay were not going to like it and that
they would fight it, have to fight it to the hilt, and I said,
'Well, it's nothing personal. We just want better condi-
tions.' And he said, 'Well, as manager, I will have to
fight it too."' Tvenstrup specifically denied the state-
ments attributed to him by Harvey.
Paragraph 6(a) of the complaint alleges, and the Gen-
eral Counsel argues, that Tvenstrup's inquiry regarding
the mailgram constitutes unlawful interrogation. It is
argued that "The statement by Tvenstrup which initiated
the conversation begs a reply. Uttering a statement
which demands reply constitutes an attempt to interro-
gate an employee and such interrogation is a violation of
Section 8(a)(1) of the Act." The Respondent argues that
no coercive statements were made, nor were any in-
quires made into Harvey's sentiments, and that the con-
versation was isolated, incidential, and trivial and there-
fore not unlawful.
While I am unable'to conclude whether Tvenstrup's or
Harvey's version is the more accurate, it seems clear to
me that the words spoken by Tvenstrup under either
witness' version were tantamount to asking Harvey if he
14 Marvin Fox, another brother, was also employed by the Respond-
ent, but did not attend the meeting. Marvin is an alleged discriminatee.
was on the Union's inplant organizing committee. The
wording of the mailgram was clear-Harvey and Jona-
than Fox were indeed on the organizing committee. The
question "Is this true" or "What is this about a union"
could only be construed by Harvey to call for a defense
of his adherence to the Union. In Fruehauf Corp., 237
NLRB 399 (1978), the Board stated "an interrogation of
an employee's union sympathies or his reasons for sup-
porting a union need not be uttered in a context of
threats or promises in order to be coercive. The probing
of such views, even addressed to employees who have
openly declared their prounion sympathies, reasonably
tends to interfere with the free exercise of employees
rights under the Act, and, consequently, is coercive
.... An inquiry into an employee's views towards a
union or unionization in general, even ostensibly ques-
tioned 'out of curiosity' and in the context of assurances
against reprisals, reasonably tends to interfere with the
free exercise of employees' Section 7 rights, regardless of
the employee's subjective state of mind." Accordingly, I
find that Tvenstrup's interrogation of Harvey violated
Section 8(a)(l) of the Act as alleged in paragraph 6(a) of
the complaint. Anaconda Co., 241 NLRB 1091 (1979).
D. August 7 Interrogation
On Monday, August 2, Tvenstrup informed Tsay over
the telephone about the mailgram he had received on
Sunday. Tvenstrup testified that the mailgram "threw me
into an area that I was unaware of and unsure of. And I
decided to hold off on any action until I could seek out
proper advice."' On Saturday, August 7, as Harvey
was leaving the Respondent's facility after work, he was
approached by Mrs. Tsay, who said her husband would
like to talk to Harvey. There is a dispute as to what was
said between the two men. Harvey, whom I credit, testi-
fied that Tsay opened the conversation by saying, "The
manager tells me you're trying to get a union in here,"
and asked why. Harvey responded, "Yes, that he was
trying to get a union because of the low pay, no benefits
and lack of job security." According to Harvey, "He
asked me, didn't the Union charge a fee to join, and I
said, yes, and he said he would talk with the manager
about it." Tsay acknowledged Tvenstrup had called him
on August 2 that Harvey and Joanathan Fox had gone to
the Union. He testified that on Saturday, August 7, as he
and his wife were walking through the parking lot to the
kitchen, he saw Harvey and told his wife, "Well, maybe
we should talk to Warren." Mrs. Tsay apparently sig-
naled for Harvey to come over. Tsay testified as follows:
And then Warren come toward me. So on the
way sitting down I saw him really nervous. He said,
"I am sorry, Mr. Tsay. I don't mean I want to give
you trouble." So then he started the conversation.
And the reason he thought he had complained be-
'6 A representation petition in Case 31-RC-5366 was filed by the
Union on Monday, August 2. A notice of representation hearing, togeth-
er with a copy of the petition, was sent to the Respondent by certified
mail on August 4, setting August 16 as the date for hearing. (G.C. Exh.
6.) The date the Respondent first became aware of the petition was not
established.
1183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause first thing the manager post a sign or a note
in the kitchen saying that nobody could talk to me
directly. If somebody talk to me, they could be dis-
missed. And he told me he feel very uncomfortable
about it.
And second he told me that about meal, we take
two meals from his wages. And he talk to the
Labor Department, even though he get two meals a
day. But during one shift we only could deduct one
meal. So he wanted some money back.
And third thing he complains, he said he figured
that they don't have any more benefits, like health
insurance, to let them feel more comfortable work-
ing in the Rossmore House.
So after that I told him, "Okay," I told him, "I
will talk to the manager and find out what is going
on here." . . . then we split up.'
He further testified that, about 2 weeks earlier, Tven-
strup had said he was having trouble in the kitchen with
Harvey and was going to fire him, and "So that day by
accident, I thought, well, maybe I should talk to Warren,
what is the reason that management wants to fire him."
Tsay was not a convincing witness, and his testimony on
cross-examination regarding the conversation with
Harvey was both vague and confusing. Inasmuch as
Tsay was the owner and the one who initiated the meet-
ing, I find it more logical that he opened the conversa-
tion as Harvey claimed rather than taking a passive role
as he, Tsay, claimed. Accordingly, I credit Harvey's ver-
sion of the conversation over Tsay's and find that Tsay
questioned him about his interest in the Union in viola-
tion of Section 8(a)(1) as alleged in paragraph 6(b) of the
complaint. Anaconda Co., supra Fruehauf Corp., supra.
E. August 5 Terminations
As noted heretofore, the Respondent converted its
dining room from table service to buffet service the last
week in July, as one of several measures intended to
reduce its operating costs. As a consequence of the con-
version, on a regular payday, August 5, six food service
employees were issued "Notice of Termination of Em-
ployment" forms reciting that they were "laid off-lack
of work . . . due to the conversion from table service to
buffet." 17 Jonathan and Marvin Fox, both waiters and
both of whom are alleged discriminatees, were among
the six. The others were waitress Susie Koloian and
waiters Jeff Rowlands, Martin Coria, and Brian Favorite.
The General Counsel does not contend their layoffs
were unlawful. Jonathan Fox, who had attended the July
31 meeting at Harvey's house, was named along with
Harvey in the Union's mailgram notifying the Respond-
ent of the inplant organizing committee. Jonathan testi-
fied that he spoke to other employees in support of the
Union and distributed authorization cards to six or seven.
Jonathan's brother Craig also attended the meeting at
I" On June 18, the Tvenstrups circulated a memo stating, in effect, that
no one was permitted to "give out the name or phone number of the
owner." (R. Exh. 2.)
1? The Respondent had reduced its total employee complement from
50 to 39 employees.
Harvey's house. I Jonathan testified that Eura Dell Wil-
liams told both him and Craig, about 2 weeks prior to
the August 5 layoff, that the changeover to buffet style
was being made in order to save money and would result
in "laying off certain employees . . . that they would
keep the better workers and fire those that are insuffi-
cient." According to him, Williams stated neither he nor
Craig had anything to worry about. While Craig Fox
was called as a witness by the General Counsel, his testi-
mony was limited to the issue of jurisdiction. Further,
while Eura Dell Williams was characterized as the super-
visor of working waitresses who attended weekly super-
visory meetings, the record fails to affirmatively estab-
lish, as noted infra, that she possesses authority which
would make her a statutory supervisory. Accordingly, I
attach little significance to the fact she may have told
Jonathan that neither he nor Craig had anything to
worry about. 19 At the most, the conversation elicits the
information that the impending layoff was known by the
employees at least a week prior to the commencement of
any union organizing activity, and that its purpose was
to save the Respondent money by cutting down on the
number of waiters and waitresses, as the Respondent
contends. Marvin Fox testified that his union activity
was limited to signing an authorization card about 10
days prior to his layoff, and to talking to two maids
about the Union. There is no evidence the Respondent
was aware of either activity.
Tvenstrup testified that the determination as to which
employees would be terminated:
. . .was made over a period of time-after getting
employee evaluations from all of my supervisors as
to their thoughts about their employees, and after
personal observations of all of the employees, after
looking at their backgrounds as far as their need for
their job was concerned, if they had a family to
support, or something of that nature, if they needed
the job to support themselves, and other recommen-
dations.
Seniority was not a factor. Both Jonathan and Marvin
Fox were part-time employees and neither had a family
to support. Craig Fox, on the other hand, was a full-time
employee with a wife and child and was therefore not
laid off. Another consideration in selecting Jonathan and
Marvin was the fact Tvenstrup had found them, along
with another employee, Vincent Thompson, in the game
room and could smell the order of marijuana smoke.
Tvenstrup therefore concluded they had been smoking it
on the premises. They were warned at the time that they
would be terminated immediately if it happened again.
Thompson had apologized whereas the Fox brothers had
laughed when reprimanded. Thompson, whom Tven-
strup characterized as a a very good employee, was not
laid off in August. While Jonathan denied Tvenstrup had
even warned him about smoking marijuana in the game
'" Craig Johnson was terminated on September 10 for having violated
a company rule against changing the time recorded on his timecard by
the timeclock. His termination is not alleged to be lawful.
I' As noted, Craig was not laid off on August 5.
1184
ROSSMORE HOUSE
room, he acknowledged he did not "all the time." Al-
though a witness for the General Counsel, Martin's testi-
mony did not cover that incident. I am convinced that
Tvenstrup was telling the truth and therefore credit his
testimony over that of Jonathan. Moch testified that one
of the cost-cutting practices instituted in the dining room
was to stop the practice of pouring orange juice before
the guests were seated at the breakfast table. This elimi-
nated wasting juice already poured for those who
wanted something else. Contrary to instructions, Moch
testified, Jonathan continued to pour and place orange
juice on the tables prior to the arrival of the guests.
Tvenstrup testified the cost-cutting measures which were
instituted in the dining room resulted in a two-thirds
overall reduction in the cost of operating it.
The General Counsel argues that Jonathan and Marvin
Fox were terminated shortly after the Respodnent
learned of their union activities and that the reasons
given by the Respondent for their terminations are pre-
textual.
It is clear that the dining room was converted from
table to buffet service for economy reasons and that
prior to the advent of the Union the employees were
aware that the change would result in terminations. It is
equally clear that Tvenstrup became aware of Jonathan's
involvement with the Union upon receipt of the mail-
gram on August 1. There is, however, no evidence that
the Respondent had any knowledge of Marvin's interest
in the Union. If I am to assume that knowledge of Mar-
vin's union interest is to be imputed to the Respondent
by virtue of his relationship to Jonathan, then the same
imputation would be applicable to Craig Fox, who was
not laid off on August 5. The fact that Craig was not
laid off with his brothers gives support to the Respond-
ent's contention that economic need, i.e., whether the
employee had a family to support and was a full-time
employee, was indeed a factor considered in determining
who would be laid off. Neither Jonathan nor Marvin had
families to support, and both were part-time employees.
Both had been reprimanded for smoking marijuana on
the premises. Four other employees were also laid off on
August 5. The Respondent has established the layoffs
were economically motivated. In short, the General
Counsel has failed to establish by a preponderance of the
evidence that Jonathan and Marvin Fox were discrimina-
torily laid off as alleged in paragraphs 6(a) and (b) of the
complaint.
F. August 18 Termination
As noted infra, on receipt of the mailgram on August
1, Tvenstrup decided to "hold off on any action until I
could seek out proper advice." Thereafter, as I have
found, both he and Tsay unlawfully interrogated Harvey
regarding his union interest. Apparently concluding he
was on safe ground, on August 18, at the conclusion of
Harvey's shift, Tvenstrup terminated him. The notice of
termination of employment of that date, General Coun-
sel's Exhibit 5, lists the reasons for discharge as (1) failed
to follow orders, (2) insubordination, and (3) not quali-
fied. The August 18 termination notice is identical to the
one completed by Tvenstrup on July 30. According to
Harvey, he told Tvenstrup that the reasons for termina-
tion were not true, and that Tvenstrup did not give him
any examples of his deficiencies. o0
The General Counsel argues that the Respondent had
knowledge of Harvey's union activity after August 1, the
date the mailgram was received, and that the testimony
established "a general aura of animus" and hostility,
which leads to the the conclusion that the reasons ad-
vanced by the Respondent for his discharge are pretex-
tual. The Respondent contends that the Tvenstrups were
made aware of problems associated with Harvey's work
from the time they took over management of the facility,
including deficiencies in food preparation and serving,
his rudeness toward and inavility to get along with the
waitresses, and later his failure to comply with instruc-
tions which resulted in numerous complaints by the
vegetarians and ultimatly to one guest serving notice that
she would move out of the Respondent's facility. The
Respondent also points to the fact that Moch had
warned Harvey that he would be terminated if he could
not prepare meals properly for the vegetarians, but that
the warning went unheeded. Consequently, on the after-
noon of July 30, prior to knowledge of any union activi-
ty on the part of any of the Respondent's employees, a
decision was made to terminate Harvey. The Respondent
contends that Harvey was not terminated on that date
because Tsay was not available to sign his final pay-
check, and it was therefore decided to wait until the fol-
lowing Monday, when Tsay would be available to sign
the check, to effectuate the discharge. Prior to Monday,
however, the mailgram arrived notifying the Respondent
of Harvey's involvement with the Union, leading Tven-
strup to delay any further action pending advice.
The question is whether Harvey was discharged for
his union interest and activity, or for an unprotected
reason. There record is replete with testimony that
Harvey was not the faultless employee that the General
Counsel seeks to portray him. Moch testified that, when
she hired Harvey, he claimed to be a cook. She conclud-
ed otherwise after she found he could not prepare a meal
properly, and the preparation of meat dishes consequent-
ly fell on her. At Mrs. Tvenstrup's direction, she also
spoke to Harvey on several occasions regarding his serv-
ice and treatment of vegetarians and warned him that he
would be terminated. Eura Dell Williams was present
and corroborated one such warning. Victoria Williams
also testified concerning complaints about Harvey's food
and that she reported the complaints to both Harvey and
the Tvenstrups. Waitress Novart Kasbarian, who charac-
terized Harvey as "mean and rude," also testified to
guests' complaints about his food preparation and serv-
ice, and his noncooperative response thereto. She carried
her complaints to both Victoria Williams and Mrs. Tven-
strup. Finally, the fact that the decision to terminate
Harvey was made on July 30, the I day before the union
meeting at his house, and 2 days before anyone from Re-
spondent became aware that Harvey was involved with
so Harvey was a witness at the representation hearing on August 16.
His testimony covers five trascript pages and was limited to commerce
information. No representative of the Respondent appeared at the hear-
ing, nor was it alleged or shown that the Respondent knew that Harvey
testified. The instant case does not allege an 8(aX4) violation.
1185
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union, has been established through the testimony of
both Mr. and Mrs. Tvenstrup, Eura Dell Williams,
Moch, and Patterson, all of whom were present when
the decision was made. 21 Having concluded that the
election to terminate was made prior to knowledge of
the Union, and for other than union interest and activi-
ties, I do not find it untoward that Tvenstrup delayed
carrying out the decision to terminate, after being in-
formed of Harvey's union involvement, until he was able
to get advice. The decision having been made prior to
knowledge of union activity, and having herein conclud-
ed that Harvey's termination was not related to the
Union, I conclude and find that the Respondent's reasons
for his termination are not pretextual as the General
Counsel argues, and that the General Counsel has failed
2' The General Counsel does not contest the fact that the Respond-
ent's first knowledge of union activity was the mailgram received on
August 1.
to prove by a preponderance of the evidence that
Harvey was unlawfully terminated as alleged in para-
graph 7(c) of the complaint. Accordingly, I recommend
dismissal of paragraph 7(c).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce 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.
3. By interrogating an employee concerning his union
activities, sympathies, and desires, the Respondent en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
1186