Royal Fork of Washington, Inc.

National Labor Relations Board - Board Decisions

Oct 17, 1969

179 N.L.R.B. 185 (N.L.R.B. 1969)

ROYAL FORK OF WASH 185
Royal Fork of Washington , Inc. and Hotel, Motel
and Restaurant Employees Union , Local No. 294
affiliated with Hotel & Restaurant Employees and
Bartenders International Union , AFL-CIO. Case
19-CA-4134
October 17, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
2. Add the following as the last indented
paragraph of the notice:
WE WILL notify the above-named employee, if
presently serving in the Armed Forces of the
United States, of her right to full reinstatement,
upon application, in accordance with the Selective
Service Act, and the Universal Military Training
and Service Act, as amended, after discharge
from the Armed Forces
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On June 24, 1969, Trial Examiner George
Christensen issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended the dismissal of such
allegations. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the
Respondent filed a brief in opposition, and in
support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and hereby orders that the
Respondent, Royal Fork of Washington, Inc.,
Yakima, Washington, its officers, agents, successors,
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order, as so
modified:
1. Add the following as paragraph 5 and
renumber the following paragraphs accordingly:
5. Notify the above-named employee if presently
serving in the Armed Forces of the United States, of
her right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
GEORGE CHRISTENSEN, Trial Examiner The Examiner
conducted a hearing at Yakima, Washington, on January
14 and 15, 1969, into issues raised by a November 25,
1968, complaint' alleging that Royal Fork of Washington,
Inc. (Respondent) violated Section 8(a)(l), (3), and (5) of
the National Labor Relations Act, as amended (Act) in
July and August of 1968.1
There is no dispute over jurisdiction, the status of the
Union as a labor organization, the appropriateness of the
employee unit the Union sought to represent, and the
supervisory and agency status of the Respondent's general
manager, Will Long, and its unit manager, Ron Wine'
The issues are whether Long and Wine coercively
interrogated or conversed with various unit employees in
July; whether Respondent on about August 1 imposed
more onerous working conditions on union supporters
among its employees than they had previously had;
whether certain wage increases were granted about July 31
in the regular and ordinary course of business or to
discourage union support, whether Respondent discharged
unit employees Wayne Duff and Myrtle Darst in July
because of their union activities or for cause; whether
Respondent constructively discharged unit employees
Glenn Cassidy, Ronald Craig and Michael Munsterman in
August and, if so, whether they were so discharged
because of their union activities or for cause, whether
David Hayson was a supervisor at the time of his
discharge in July and, if not, whether he was discharged
for union activity or for cause, whether the Union on July
18 and subsequently represented a majority of
Respondent's employees in the unit, whether the
Respondent refused to recognize and bargain with the
Union because of a good-faith doubt of its majority
representative status or for the purpose of gaining time to
undermine the Union and dissipate its support among the
unit employees; lastly, whether by any one or more of the
above acts, if found, Respondent violated Section 8(a) of
the Act.
All parties appeared at the hearing and were afforded
full opportunity to introduce evidence, to examine and
cross-examine witnesses, to argue orally and to file briefs.
Briefs were submitted by the General Counsel and the
Respondent.
Based upon his review of the entire record, observation
of the witnesses, perusal of the briefs and research, the
Examiner enters the following-
'A charge and amended charges were filed with the Regional Office on
September 20, October 21, and November 22, 1968
'All events occurred in 1968
'The supervisory status of Ethel Pierce, the head cook, and Edwin
Schaffner, after his promotion from the unit to replace David Hayson as
assistant unit manager, is likewise undisputed
179 NLRB No. 28
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The Respondent admitted the jurisdictional facts and
conclusions alleged in the complaint regarding commerce
and labor organization. The Examiner therefore finds and
concludes that the Respondent was an employer engaged
in commerce and in a business affecting commerce and
the Union was a labor organization within the meaning of
Section 2(2), (5), (6), and (7) of the Act at all times
pertinent
II. THE UNFAIR LABOR PRACTICES
A. The Independent 8(a)(1 Allegations
I The individual interrogations and July 30 meeting
The Union mailed a letter to Unit Manager Wine at
Yakima on July 22 asserting its representation of majority
of Respondent's unit employees, declaring its willingness
to submit its authorization cards for a cross-check against
current payroll records by a disinterested party, notifying
Respondent it had filed a petition with the Board for
certification as the employees' majority representative,4
and stating it desired a meeting with the Respondent for
the purpose of negotiating a contract covering their wages,
hours and working conditions. It was received by Wine
and brought to the attention of General Manager Long on
July 24.'
Between that date (July 24) and July 30, Long and
Wine conducted a series of interrogations of the unit
employees
On July 24, Long asked Michael Munsterman whether
he had joined the Union; Munsterman replied that he had.
Shortly thereafter, at the serving line, Wine asked
Munsterman who the union "instigators" were;
Munsterman replied that he would rather not say. Wine
then stated that he knew who one of them was, namely,
Myrtle Darst Munsterman agreed that was so, and stated
he and Ronald Craig were also He also named Paul
Haysom as a union supporter.6 Wine stated he would like
to have Munsterman repeat his statements to Long.
Munsterman and Wine proceeded to Long's office, where
Munsterman repeated to Long that he, Craig and Darst
were the union leaders among the employees Long
expressed his dismay at the employees seeking union
representation, stated they were going behind his back,
that unions were communistic, and that he was going to
fight the union.
Craig came into the restaurant later that same day
(July 24) to turn in his time (he was not scheduled to
work that day) Munsterman advised Craig he had told
Long and Wine that he, Craig and Darst were the union
leaders among the employees. Long saw Craig and told
him he wanted to talk to him. Craig waited awhile but,
aware he would be late if he did not leave to go home and
change clothes for an appointment, left without seeing
Long. Long telephoned him after he arrived home, and
asked him why he was supporting the Union Craig
responded that he did not believe the employees were
'Case 19-RC-4879 With the approval of the Regional Director, the
petition was withdrawn without prejudice in February of 1969
'Haysom's testimony that Wine and Long discussed the letter with him
on July 24 is undisputed
'Wine so testified
being treated right Long asked who else had joined. Craig
did not respond. Long stated he was disappointed in Craig
and his going behind his back to the Union. He ended the
conversation by saying he would see Craig in the morning.
The following day Craig was called into Long's office.
Both Long and Wine were present Long repeated his
inquiry as to why Craig had joined the Union, and Craig
gave the same answer As he had with Munsterman, Long
characterized support of unions as a step towards
communism, that unions were bad for Craig and for his
children, stated that he (Long) did not want his children
growing up in a place where a person could not run his
own business, asserted the employees were being treated
fairly, and expressed his disappointment in Craig for
supporting the Union Long also contacted Carol Roberts
at the restaurant in late July, and asked her if she had
signed a union card She replied that she had Long then
asked why in hell she had signed something like that, to
which she made no response
Long also interrogated Dorothy Bergens between July
24 and July 30 on the subject of whether she had signed a
union authorization card and received a negative response.
Wine interrogated Richard Granberg and Michael
Mastel He asked Granberg whether he had signed
anything showing his intention to join the Union
Granberg replied that he had. Wine asked him why.
Granberg responded that he did not think he was receiving
a fair wage for the work he was performing. Wine replied
that he ought to look for a better job if he was dissatisfied
with his present one Granberg stated he had been
looking, but without success Wine ended the exchange by
wishing Granberg good luck in his job search. As to
Mastel, Wine opened the conversation by asking Mastel if
he had signed a union card Mastel said that he had. Wine
asked him why. Mastel replied that he liked the money it
had been indicated the Union might secure for the
employees. Wine rejoined that Mastel could look for a
higher paying job, at which Mastel remained silent. Wine
subsequently referred to Granberg as Jimmy Hoffa and to
Mastel as Dave Beck.
Both Long and Wine also interviewed Edwin Schaffner
during the latter part of July' On learning that Schaffner
had signed a union authorization card, Long reiterated his
disappointment in Schaffner and his negative opinion of
the Union and unions in general . Schaffner was asked to
name all of the employees he knew who had signed cards
for the Union Schaffner named Craig, Munsterman,
Darst, Mastel, Earl Wayne Duff, and was not sure as to
others.
Long did not testify, Wine did not deny any of the
statements attributed to him other than a general denial
that he knew Darst was a union leader at any time prior
to her July 28 discharge (which is not credited) and
conceded that he and Long did interrogate unit employees
because, as he put it, "Mr. Long did not have the feeling
that the majority of the employees were interested in the
union. .."
The Respondent called a meeting of all unit employees
at the restaurant after the close of business on July 30.
The meeting commenced at approximately 10.00 p.m. It
was attended by Long, Wine and most of the unit
employees (the day help did not attend). Long chaired the
meeting and repeated the comments he had made earliei
to individual employees regarding his opposition to the
Union He asked why the employees were dissatisfied. The
employees responded with complaints over not being
'Schaffner was still within the unit at this time
ROYAL FORK OF WASH. 187
furnished uniforms, lack of adequate ventilation, working
conditions and wages. Long stated that since some jobs
had been eliminated (Darst, Duff and Haysom were
discharged in late July)' there was more money for wage
increases and suggested that employees desiring wage
increases see him the following day Craig asked why
Darst, Duff and Haysom were terminated Long declined
to give a reason. Long also asked those who had signed
cards for the Union to hold up their hands. Some of the
employees who had signed held up their hands. Craig
commented that three who had signed cards were not
there, i e., Darst, Duff and Haysom.
The Respondent did not deny the interrogations nor the
testimony of what occurred at the July 30 meeting; the
defense advanced was that they were noncoercive and
good-faith inquiries to determine the validity of the
Union's July 22 claim of majority representative status
among the unit employees.
It is clear, however, that both the individual inquiries
and the July 30 poll went far beyond the limits set out in
the Struksnes decision' for such efforts, as the Board
stated in that case
In our view any attempt by an employer to ascertain
employee views and sympathies regarding unionism
generally tends to cause fear of reprisal in the mind of
the employee if he replies in favor of unionism and,
therefore, tends to impinge on his Section 7 rights .. .
That such fear is not without foundation is
demonstrated by the innumerable cases in which the
prelude to discrimination was the employer's inquiries
as to the union sympathies of his employees. . . We
have . determined . . to adopt the following criteria
Absent unusual circumstances, the polling of
employees will be violative of Section 8(a)(1) of the
Act unless the following safeguards are observed.
(1) the purpose of the poll is to determine the
truth of a union's claim of majority,
(2) this purpose is communicated to the
employees,
(3) assurances against reprisal are given,
(4) the employees are polled by secret ballot, and
(5) the employer has not engaged in unfair labor
practices or otherwise created a coercive atmosphere
In this case, neither Long nor Wine advised the
employees they interrogated individually about their union
support between July 24 and 30, nor those who were
asked to hold up their hands at the July 30 meeting if they
were union supporters, that they were simply trying to
determine if the Union's July 22 claim of majority
representative status was valid, nor did they assure such
employees that no reprisal was intended, nor did they
employ a secret ballot The late July discharge of union
adherent, Haysom, admittedly for having sought to
conceal his affiliation with the Union, the late July
discharges of union adherents, Darst and Duff,'° the
termination of Van Finger at the opening of the July 30
meeting, and the antiunion tone of Long's remarks both in
the individual interrogations and at the July 30 meeting,
hardly constitute the noncoercive atmosphere required by
'Michael Van Finger also was terminated at the July 31 meeting Wine
asked what he was doing there (Van Finger had earlier indicated he
intended to quit ) Van Finger replied that he still was an employee and
wanted to know what was going on Wine asked him what date he was
quitting Van Finger said he had not decided. Wine told him he would
make up his mind for him , at which Van Finger stated in that case, he
would quit Wine then requested that he leave the meeting and Van Finger
did so, before the meeting commenced
'Struksnes Construction Co, Inc, 165 NLRB No 102
the Board's Struksnes decision.
The Examiner therefore finds and concludes that by
their interrogations of unit employees Munsterman, Craig,
Roberts, Borgens, Granberg, Mastel and Schaffner
between July 24 and 30 concerning their union support
and activities and those of other employees, as detailed
above, Long and Wine violated Section 8(a)(1) of the Act.
The Examiner further finds and concludes that by his poll
of unit employees on July 30 at the mass meeting
concerning their union support, as detailed above, Long
violated Section 8(a)(1) of the Act
2. The wage increases and interrogation of Corning
and Emhoff
The complaint alleges four wage increases granted
about July 30 to take effect August 1 were violative of
Section 8(a)(1) of the Act in that they were intended to
influence the employees to which they were granted either
to refrain from supporting the Union or to cease their
union support. The Respondent defends on the ground the
increases were granted either due to promotion, changed
(increased) job responsibilities or meritorious job
performance.
The four employees who received increases effective
August 1 were Edwin Schaffner, whose rate of pay was
increased from $1.60 to $1 80 per hour, Ann Corning,
whose rate of pay was increased from $1.25 to $1.40 per
hour; Ronald Craig, whose rate of pay was increased from
$1.35 for work during the week and $1 50 for weekend
janitorial work to $1.60 per hour for all work performed,
and Steven Emhoff, whose rates of pay were the same as
Craig's before the increase, to $1.50 for all work
performed.
Schaffner's increase accompanied his promotion to a
position outside the bargaining unit, i e., to assistant unit
manager Prior to the promotion, Schaffner worked as a
dishwasher, on the floor (carrying and removing trays,
serving coffee and desserts, cleaning tables, etc.) and as a
meatcarver Subsequent to the promotion, he made up the
work schedules of the floor and kitchen help, assigned and
supervised their work, kept books, took charge of cash
receipts, including deposit thereof daily at the bank, and
exercised general supervision over the operation of the
restaurant, in conjunction with Wine during Wine's
presence and completely during Wine's absence or
unavailability. His new rate of pay ($1.80) was 5 cents less
than the rate the predecessor in his position had received
immediately prior to his discharge.
On the basis of the foregoing, the Examiner finds and
concludes that Schaffner's August 1 increase was
reasonably related to his increased job duties and new
position, in compensation therefor, not for the purpose of
persuading Schaffner to desist from his prior support of
the Union, and therefore not violative of Section 8(a)(l)
of the Act
Corning went to Long's office on July 31 pursuant to
his invitation at the July 30 meeting to visit him if a wage
increase was desired She requested a raise. Long asked
-her why she felt entitled to one, and they discussed her
duties and job performance Long asked her if she had
joined the Union (she had not been interrogated
previously about her union sentiments) and she replied
that she had not. The parties stipulated at the beginning
of the hearing that Long gave Corning a 5-cent increase to
"The 8(a)(3) issues arising from the discharges of Haysom, Duff, and
Darst will be discussed later in this Decision
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a rate of $1 30 per hour, Corning testified, however,
without contradiction or objection, that she was granted a
15-cent-per-hour increase to $1 40 per hour"
Emhoff approached Wine at the July 30 meeting and
asked for a wage increase Several previous requests had
been denied. Wine brought Long into the discussion with
Emhoff, in the course of which Emhoff was asked if he
had signed a union pledge card, to which he replied that
he had not He was informed that he had his raise
Craig conferred with Long and Wine after the July 30
meeting about a raise and was advised they would think
about it Craig saw them again the next day (at Long's
office) Long told Craig he and Wine had discussed a raise
for Craig and decided to give him $1.60 per hour, effective
August 1 As Craig left Long's office, Wine commented
that he hoped Craig would now forget the Union
It is apparently Respondent's position that the Corning
raise was a merit increase, since there was no change in
her job duties or performance accompanying the increase
In the case of Emhoff and Craig, their job duties did
change in late July. They assumed cooking duties during
the late afternoon-evening hours performed by Myrtle
Darst, a full-time employee, prior to her July 28
discharge.
Respondent contends that their August 1 increase was
granted solely due to their changed job duties and not to
influence their attitude towards the Union
The timing of the increases to Craig, Emhoff and
Corning (shortly after Long and Wine learned of the
union campaign among the unit employees and
immediately after learning that dissatisfaction with current
wage scales and union assurances it would seek higher
rates was a primary factor in employee support of the
Union), the grant of Emhoff and Corning's request
immediately after ascertaining that neither had signed an
authorization card for the Union, Wine's comment that he
hoped the higher raise granted to Craig than that granted
to Emhoff would lead Craig to abandon his support of the
Union, however, all support a contrary inference or, at the
very least, a mixed motivation for the grant thereof
The Examiner therefore finds and concludes that
Respondent's motivation in substantial part in granting
the Corning and Emhoff increases was to influence
Corning and Emhoff to refrain from union support and to
influence Craig to cease his support of the Union, and
therefore violated Section 8(a)(1) of the Act The
Examiner further finds by interrogation of Emhoff on July
30 and Corning on July 31 concerning their support of the
Union, as detailed above, Long further violated Section
8(a)(1) of the Act.
3. Imposition of more onerous working conditions
The complaint alleges that Respondent violated Section
8(a)(1) of the Act by the assignment of more onerous
working conditions by Long or Wine to union supporters
among its employees on or about August l than they had
received previously
Craig testified that he went on a 1-week vacation
starting July 31, after his conversation with Long and
Wine about his $1 60 raise, returning to work about
August 7; that following his return, Wine maintained a
constant surveillance over his working activities, on three
evenings made him stay later than usual to perform duties
normally carried out by the janitor, i.e , cleaning under
tables, mopping the large refrigerator unit, cleaning the
The Examiner credits Corning's testimony
tops of stoves, and generally criticized him Other
employees testified that Wine made them work harder
than they had been required to work prior to Wine's hire
(on July 15)
However, there was general corroboration both by
Craig and other employee witnesses that working
conditions became more onerous for all the employees,
both union suppporters and nonsupporters, after Wine
assumed a management role at the restaurant on July 15,
that Wine was belligerent and zealous in his relations with
the employees from the time he started work, whereas
prior to Wine's hire Long and Haysom's administration
had been relaxed and comfortable.
On the basis of the foregoing, the Examiner finds and
concludes that the General Counsel failed to meet his
burden of establishing that more onerous working
conditions were imposed by the Respondent upon union
supporters than upon nonsupporters on or about August
I, and will recommend that this allegation of the
complaint be dismissed
B The Alleged 8(a)(3) Violations
I The Haysom discharge
David Haysom was hired as a busboy at $1 65 per hour
when the restaurant opened in late March He was a
college student at the time As noted heretofore, Long was
in charge of the operation at that time and for several
months thereafter
Long made Haysom his assistant manager a few
months after the restaurant started business. He was in
complete charge of the restaurant operations during
Long's absences, and was paid $2.00 during the periods of
such absence While Long was there, he was paid $1.85
per hour. His major function was to direct the work of the
busboys on the floor. He also collected and deposited the
money receipts, and had keys to the safe and the doors
He opened and closed the restaurant He interviewed
applicants for busboy positions, on one occasion during
Long's absence discharged one busboy, and relieved the
busboys and sent them home when and if the workload
appeared to warrant decreasing the staff on duty.
On about July 13, Haysom injured his back in a slip
and fall at the restaurant. He was off several days and
only worked sporadically from that time to his July 29
discharge
Wine commenced employment as the local manager of
the restaurant on July 15
On July 18, Haysom, Schaffner, and Granberg visited
the Union's office and conferred with Business Agent
Donald Carter. During the visit Haysom executed a union
authorization card and gave it to Carter.
On July 24, Haysom, who was off work, was requested
to come to the restaurant to confer with Long and Wine
On his arrival, Long asked him what he knew about the
Union's July 22 letter referred to earlier, which Long had
before him. Haysom said he didn't know anything about
it. Wine asked him who the Union's leader was. Haysom
said he didn't know. Wine then asked him if Myrtle Darst
was the leader. Haysom repeated that he did not know.
Haysom was then asked if he had signed a union
authorization card, and replied that he had not At the
conclusion of the conference, Haysom asked when he
should report in for work and was told to call in the
following Sunday, July 28.
As noted heretofore, Munsterman informed Wine that
Haysom had signed a union authorization card. When
ROYAL FORK OF WASH. 189
Haysom telephoned Wine on July 28, Wine asked him to
come in and talk to him the following day When Haysom
arrived the following day, Wine informed Haysom he had
learned that Haysom had signed a union card and asked
him why he had stated to the contrary Haysom admitted
that he had signed a card and said he was afraid to tell
Long and Wine that he had done so Wine replied that he
did not want a liar as his assistant manager and that
Haysom was discharged
The major question is whether or not Haysom was a
supervisory employee and therefore excluded from the
protection of the Act at the time of the discharge. The
Examiner finds and concludes that he was He possessed
the authority to assign work to the employees under his
direction or relieve them of work, to discharge employees
under his control, to handle money receipts, to open and
close the restaurant, and to run the restaurant in the
absence of the manager. It is further notable that there
was no dispute over the supervisor status of Edwin
Schaffner, Haysom's successor.
Inasmuch as supervisors within the meaning of Section
2(11) of the Act are not entitled to its protection, the
Examiner finds and concludes that the Haysom discharge
was not violative of the Act and shall recommend that the
portion of the complaint so alleging be dismissed 1S
2 The Duff discharge
Earl Wayne Duff was employed by Respondent as a
busboy when the restaurant opened in late March He was
a college freshman at the time Shortly thereafter, he was
assigned to work as a dishwasher and continued in that
job until his discharge.
His wife often accompanied him to the restaurant and
waited until he completed work, sitting out in the
restaurant section On a few occasions in May and June,
she entered the kitchen area where the dishwashing work
was performed and assisted the dishwashers Sometime in
June, Duff was informed by Long and in turn informed
his wife that since she did not have a health card, she
should cease doing any work in and stay out of the
kitchen area
Mrs. Duff continued coming to the restaurant with
Duff thereafter and sat in a booth in the restaurant area
while she waited for him to complete work, oftentimes
bringing along a book to read
Duff executed an authorization card for the Union on
July 16 and turned it over to Craig for delivery to the
Union
When Duff drove to work the evening of July 20, he
was accompanied by his wife and Mastel. They arrived at
the restaurant about 6.30 p m Mastell and Duff went to
work in the dishwashing area Duff's wife sat down in the
restaurant area. Mastel's wife arrived shortly before
Mastel and Duff came out into the restaurant area to eat
their dinner, at about 9 00 p.m. The two men informed
their wives there were many dishes to be washed, they
would probably not finish up until about midnight, and
suggested the two women decide whether or not to wait
and let them know.
Shortly thereafter, Duff's wife decided to go home with
Mastel's wife in the Mastel car and to give Duff the keys
to the Duff car so the two men could go home in it. The
two women went into the kitchen area, where they were
stopped by Mrs. Long, who asked if there was anything
49
"National Freight , Inc. 154 NLRB 621, Sopp's Inc, 175 NLRB No
she could do for them. Mrs Duff replied no, there wasn't,
and continued on towards the dishwashing area Mrs
Mastel went back to the washroom Before Mrs Duff
reached her husband, Mr Long appeared and shouted
angrily at Mrs Duff, ordering her to get out of the
kitchen, and to stay out. Long then turned away and Mrs
Duff started out of the kitchen area, still not having
spoken to Duff. On her way out, Mrs Duff admittedly
made a gesture towards the place where Long had
appeared which Mastel described as giving Long "the
finger " Wine observed the gesture Mrs Duff
subsequently gave the keys to the Duff car to Mrs
Mastel, who in turn gave them to Wine for delivery to
Duff with the message the two women were going home
The Mastel and Duff apartments were across the hall
from one another
Wine conferred with Long and insisted that Duff should
be fired, Long acquiesced Wine called Duff to the office
after he completed work and told him he was discharged
When queried as to the reason, Wine said it was because
Duff's wife told Long to kiss her rear Duff argued he
should not be discharged for something his wife did. Wine
replied that Duff was responsible for his wife's conduct.
Duff related the exchange to his wife on arriving home
and she denied making any statement to Long
The next day Duff and his wife went to the restaurant
to see Long Wine met them and escorted them to the
office In the course of discussing the discharge, Wine said
the incident of the previous evening was not his only
reason for discharging Duff, that he was dissatisfied with
Duff's work as well At the same conference, Wine
dismissed an inquiry as to whether Duff's union support
had anything to do with the discharge with the statement
that he did not know anything about a union and later, to
a repeat inquiry, that a union would not make any
difference
The General Counsel contends that Duff was
discharged because of his support of the Union and not
for the reasons given by Wine While the original reason
given by Wine for the discharge does appear rather flimsy,
and Duff was not advised at any time during the
preceding several months of any shortcomings in his work
performance, it is nevertheless necessary to establish that
Wine had some awareness or knowledge that Duff was a
union supporter before it may be maintained that this was
the reason for his discharge
The record is devoid of any evidence of knowledge on
the part of either Long or Wine that Duff was a union
supporter prior to his July 20 discharge
The Examiner therefore finds and concludes that the
General Counsel failed to meet his burden of establishing
that Duff was discharged for union activity and
accordingly shall recommend that the portions of the
complaint so alleging be dismissed
3 The Darst discharge
Myrtle Darst was hired on April I, a few days after the
restaurant opened, as a cook She acted as a relief cook
and salad maker for the day cook and generally worked
during the evening hours performing the cooking tasks
required during the dinner period (the major items were
prepared by the day cook for dinner, but chicken was
fried and various short-order items were prepared during
the dinner hours) She was hired by Long and guaranteed
a minimum of 40 hours of work per week There were two
other full-time adult cooks, Ethel Pierce, the chief cook
and supervisor, and Dorothy Borgens, both of whom
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
normally worked days Darst was paid $1.65 per hour to
start, and was earning $1 75 per hour at the time of her
discharge
It was Darst who suggested the possibility of seeking
union representation to Craig, who was the leader of the
students working at the restaurant. She made the intial
contact with the Union in early July and executed one of
the union authorization cards on July 16
Darst asked for and received permission from Long in
May to take a short vacation without pay extending from
Thursday, July 25 through Sunday, July 28 Darst usually
worked on relief on Saturday and Sunday
On the weekend previous to her scheduled vacation, she
did not work either Saturday, July 19, or Sunday, July 20,
due to illness She was still ill on Monday, July 21, and
called the restaurant. She spoke to Don Franklin, an
efficiency expert assigned to work with Long and Wine to
improve the restaurant operation where possible by cutting
costs, increasing productivity, etc Franklin told her not to
worry, he would cover her work that evening, and to call
again the next day. She telephoned the next day, Tuesday,
July 22, and talked to Wine He told her he wanted her to
come to work on Thursday, July 24, at 7.00 to 7.30 a in.
She told Wine that Long previously gave her permission
to take a vacation commencing that Thursday and ending
the following Sunday, so she could not come in Thursday
morning Wine replied that she might as well take off
Tuesday and Wednesday, July 22 and 23, and have a good
vacation. She thanked him and said she appreciated his
giving her the additional time.
On the morning of July 24 prior to leaving for her
vacation, Darst went to the restaurant to pick up her pay
for the previous working period Wine gave her the pay,
told her to call him on her return on Sunday for her
working schedule for the following week, and expressed
the hope she would enjoy her vacation. As detailed above,
Wine thereafter learned that Darst was one of the leaders
of the movement to secure union representation.
Darst telephoned Wine on Sunday, July 28, to secure
her working schedule for the following week Wine
informed her that she was discharged When she asked
why, he stated her job had been eliminated. She asked
how a cook's job could be eliminated , since the cooking
still had to be done He simply repeated that her job had
been eliminated. She asked to talk to Long, and was
informed he was out of town.
On Long's return the following Tuesday, July 30, Darst
went to see him. Long told her they wanted to reduce
labor costs and had decided to have the boys do the
necessary cooking in the evening hours.
Wine also entered the conversation and said if he had
his way, he would have fired Darst the first few days he
was there, because she refused to taste some carrots she
had cooked. This was a reference to an incident about
July 16, when Darst was going to make a ham casserole
at Long's instructions She was doubtful whether to use
some carrots left over from the previous day, and asked
Long to taste them to ascertain whether they should be
used or discarded. Wine asked her why she didn't taste
them herself. She said they made her ill Long then tasted
the carrots and said they seemed alright and to use them,
which she did. The next day Wine called her at home (she
was off work) and asked what she had done to the
casserole She asked what he meant. He said they wanted
to put it on the line the next day but found it was sour
and couldn't be used. She replied that it was probably
sour because the carrots were sour to start with.
In the course of the July 30 conversation, Long also
referred to friction between Darst and Dorothy Borgens as
a reason for her discharge. This was a reference to an
incident several months previous, when Long had
informed Darst she was creating problems with the day
help by not doing the backup work ( preparing salads, etc.
in the evening for use the following day). Darst asked her
supervisor, Ethel Pierce, what she was doing wrong.
Pierce said she didn't have any complaints over Darst's
work, but she thought Dorothy Borgens had come to work
and found no backup work performed, so it put her in a
bad position. Darst said Dorothy should have said
something to her, she didn't realize she was supposed to
have some backup work done for the next shift Darst
then asked Borgens about it, at which Borgens threatened
to quit Long came in and suggested a meeting. At the
meeting Long admitted that Borgens had not made any
complaints. It appeared that Pierce had complained to
Long without saying anything to Darst. There were no
further problems or complaints subsequently, and Borgens
and Darst continued on excellent terms.
The restaurant did attempt to use the student help to
perform the cooking tasks after Darst's discharge.
However, the effort lasted for only a few weeks. Mrs.
Pierce complained of the extra burden it placed on the
two full-time cooks, both in constantly attempting to train
boys to do the work and because the loss of one full-time
cook placed too heavy and exhausting a workload on her
and Borgens In late August, the restaurant hired an
additional full-time adult cook, Harriet Cobb.
Respondent's president, Jerry L. Caven, testified that it
is the policy of the restaurant chain which he heads and of
which the Yakima restaurant is a part, to employ student
help to the maximum degree possible, to realize the twin
objectives of aiding the community and students by
providing employment which fits in with school schedules
and at the same time holding down labor costs. Wine
testified that Franklin, Long and he jointly decided to
reduce labor costs and maintain their policy of
encouraging student employment by discharging Darst and
replacing her with student help The carrot-tasting incident
and the Borgens-Darst matter were also cited as grounds
for the discharge.
The thrust of the labor cost reduction contention is
reduced by the simultaneous increases of 15 cents per hour
to Emhoff and 25 cents per hour to Craig for performing
the cooking tasks for a short period after Darst's
discharge and her replacement by another full-time adult
cook approximately a month after her discharge The
carrot tasting and Borgens incidents are obviously
afterthoughts, without substance, occurred sometime
before the discharge, and do not reflect adversely on
Darst.
On the morning Darst picked up her check (July 24)
Wine was friendly and requested that Darst call him on
her return from vacation for her work schedule the
following week, subsequently Wine learned Darst was the
leader of the Union's organizational efforts, on her return
from vacation, Wine informed her she was discharged and
in a conference a few days later was antagonistic and
informed Darst he would have liked to have fired her a
few days after he came on the job. The Trial Examiner
finds and concludes that this complete change of attitude
on Wine's part and the decision to discharge Darst was
prompted by his and Long's acquiring knowledge that
Darst was the leader of the Union ' s organizational
campaign and not in any cost reduction program or for
ROYAL FORK OF WASH. 191
not tasting carrots or because of any friction between
Darst and Borgens, and further finds and concludes by
virtue thereof the Respondent violated Section 8(a)(3) and
(1) of the Act
4. The Cassidy termination
Glenn Cassidy was employed by Respondent as a
busboy in May He was a high school student He
continued in the capacity of busboy until the termination
of his employment
He executed a union authorization card on July 18 and
turned it over to Craig for delivery to the Union At the
employee mass meeting on July 30, Cassidy held up his
hand when Long asked all those present who had signed
cards for the Union to do so
The General Counsel contends that Cassidy was
constructively discharged by the Respondent on August 4
because of his union support. In the Examiner's judgment,
the following testimony by Cassidy himself completely
refutes that claim.
Q When did you leave the Royal Fork'
A You mean when did I quit?
Q. Yes.
A August 4
Q. Why did you quit the Royal Fork9
A. Because I didn't like Mr. Wine I didn't like
working conditions, and my mother was pressuring me
to quit because of the deal she heard about serving
liquor while we were working.
While Cassidy related some acts of Wine directed
towards making him work harder, it was not established
that they occurred after July 30, nor were other than
Wine's generally agressive conduct toward the employees.
The Examiner finds and concludes that Cassidy quit of
his own accord for the reasons he himself stated and was
not constructively discharged by the Respondent because
of his support of the Union, and therefore shall
recommend that those portions of the complaint alleging
to the contrary be dismissed.
5 The Craig and Munsterman terminations
As discussed and found heretofore, Craig and
Munsterman were leaders with Darst of the union
organizational effort among Respondent's employees, this
fact was known to Long and Wine after July 24, and
Craig was given a substantial wage increase and assigned
to cooking duties during the evening hours along with
Emhoff after Darst's discharge
The General Counsel contends that Craig and
Munsterman were constructively discharged by the
Respondent on August 14 because of their union activities.
Munsterman, however, testified he had decided to quit
his employment on August 14 even before he reported for
work that evening He too cited his dislike of Wine as one
of the major reasons he decided to quit He also cited his
unhappiness with Wine's vacillation over giving him a
wage increase he had requested and thought he had
received on July 31.
From the time of his employment in April,
Munsterman worked as a busboy He was being paid
$1 35 per hour when he approached Wine on July 31
pursuant to the July 30 invitations at the mass meeting.
Wine told Munsterman that he had been one of the
employees considered for a raise and that as a matter of
fact he had one Wine then told Munsterman he could
take the rest of the day off if he desired since he had
requested and received permission to be off work for
several days commencing August 1 to make a vacation
trip to San Francisco. Munsterman returned to work
about August 7 and asked Wine what his new rate was
Wine replied that he could not give Munsterman a raise
after all, because labor costs had increased Munsterman
then asked if he could change his work assignment from
busing to cooking Wine said that he could and that as
soon as he learned to cook without supervision, he would
receive a raise He then began working with Mrs Pierce,
learning to cook, besides continuing to perform other
restaurant work in the kitchen, at the serving line, and on
the floor, as the occasion required. At this time Craig was
receiving $1.60 per hour and Emhoff $1.50 per hour
As noted heretofore, Munsterman stated that he had
decided to quit at the end of his shift on August 14, and
he so advised both Craig and Emhoff that evening
However, all three actually quit about midway through
the shift, after an altercation between Emhoff and Wine.
It occurred when a customer refused to accept some sliced
roast beef from Emhoff at the serving line. Both
Munsterman and Craig were in the kitchen nearby The
customer stated she did not want any left-over beef
Emhoff tried to assure her it was good beef but Wine
interceded, upbraided Emhoff for attempting to serve the
beef, and told him to take it back in the kitchen and get
the customer some fresh beef. Emhoff took the beef back
in the kitchenwhereWine instructed Craig to put the beef
in a different pan with a few more slices added, and then
bring it back to the serving counter The customer was
then served.
Emhoff, upset over the incident, announced he was
quitting shortly thereafter Craig joined him and said he
was quitting too Munsterman, not to be left out, also
quit, and the three left together.
Emhoff, the direct recipient of Wine's ire, made no
claim of constructive discharge and frankly stated that he
quit of his own accord because of Wine's disagreeable
conduct and the embarrassment it caused him As earlier
noted, Munsterman had decided to quit before he started
work that evening and only advanced the hour of his
termination - he had intended to finish out the shift until
the beef incident occurred. Craig stated that the beef
incident was the last straw, as far as he was concerned,
that he was just fed up with Wine and the way he ran the
restaurant As earlier noted, Emhoff did not sign a union
authorization card and had so informed Long and Wine,
while Craig and Munsterman had signed cards and were
leaders in the campaign to secure union representation
On these facts, the Examiner finds and concludes that
the General Counsel has not proved that Wine
constructively discharged Craig and Munsterman because
of their support of the Union but rather finds that they
voluntarily quit their employment because of their dislike
of Wine and his arbitrary methods, and shall recommend
that those portions of the complaint alleging these two
discharges to be violative of the Act be dismissed
C The Alleged 8(a)(5) Violations
1 The unit
As noted heretofore, the parties agreed that the unit set
forth in the Union's July 22 letter in which it claimed
majority representative status is an appropriate unit under
Section 9 of the Act and the Examiner so finds.
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The union majority
The General Counsel alleges that on the date the union
letter was sent, July 22, the Union represented a majority
of the employees in the unit.
The parties concede that Dorothy Borgens, Glenn
Cassidy, Ann Corning, Ronald Craig, Myrtle Darst,
Steven Emhoft, Lyn Gauthier, Richard Granberg, Tim
Haney, Michael Mastel, Michael Munsterman, Rick
Pettengill, Carol Roberts, Edwin Schaffner, and Michael
Van Finger were in the unit at that time
The General Counsel contends that David Haysom and
Earl Wayne Duff should also be included, and the janitor,
Laurence Weinman, should be excluded
The Respondent contends that David Haysom and Earl
Wayne Duff should be excluded and the janitor should be
included
Inasmuch as the Examiner has entered findings that
Haysom was a supervisor at all times pertinent and that
Duff was discharged for cause on July 20, he finds that
Haysom and Duff should be and they hereby are excluded
from the unit as of July 22
Wine testified that Weinman was employed as a janitor
to clean the premises and worked daily at his assignment
at a fixed rate of $4.00 per day, by agreement with Long.
He was, therefore, a regular part-time employee, as were
most of the student help. Weinman was in the active
employ of the Respondent at all times pertinent.
It is the finding of the Examiner that Weinman had
sufficient community of interest with the balance of the
unit to warrant his inclusion therein, and he so finds
Adding Weinman to the agreed inclusions set out in the
second paragraph above, there were 16 employees in the
unit The record establishes that as of that date the Union
had secured eight valid authorization cards from unit
employees Cassidy, Craig, Darst, Granberg, Mastel,
Munsterman, Roberts and Schaffner. Therefore, the
Union did not represent a majority of the employees in
the unit at that time, as it claimed.
Lacking such majority status, the Respondent was not
under any duty to bargain with the Union on July 22 or at
any time subsequent, either generally with respect to the
unit employees' wages, hours and working conditions, or
with respect to the wage increases granted to various
employees subsequent to July 22."
For the reasons stated above, the Examiner finds and
concludes that the Respondent did not violate Section
8(a)(5) of the Act and shall recommend that all portions
of the complaint so alleging be dismissed.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce and in a business affecting commerce and the
Union is a labor organization within the meaning of
Section 2(2), (5), (6) and (7) of the Act.
2. By interrogating employees concerning their union
sympathies, affiliation and desires and those of other
employees, by granting wage increases to influence
employees in their attitude towards and support of the
Union, and by discharging Myrtle Darst for engaging in
union activities, all as set forth above, the Respondent has
engaged in and is engaging in unfair labor practices
violative of Section 8(a)(1) and (3) of the Act
"In addition to the August I increases earlier discussed , the record
establishes that increases were given to Borgens sometime in August, to
Granberg in late August or September, and to Mastel in September
3. The Respondent did not otherwise violate the Act.
4 The aforesaid unfair labor practices occurring in
connection with Respondent's operations in interstate
commerce will tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof unless
remedied in accordance with the provisions of the Act.
THE REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, it will be recommended that it
cease and desist therefrom and take certain affirmative
action of the type conventionally ordered in such cases as
provided in the Recommended Order below, which are
necessary to remedy and remove the effects of the unfair
labor practices and to effectuate the policies of the Act
RECOMMENDED ORDER
On the basis of the entire record and the foregoing
findings and conclusions, the Examiner recommends that
the Respondent, its officers, agents, successors, and
assigns, be ordered to
1. Cease and desist from interrogating its employees
concerning their and other employees' union membership,
desires, sympathies and affiliations.
2. Cease and desist from granting wage increases to its
employees to influence their support of the Union
3. Cease and desist from discharging employees for
leading an effort to secure union representation for the
employees or for otherwise supporting the Union
4 Offer Myrtle Darst immediate and full reinstatement
to her former or substantially equivalent position at the
rate of pay and with all other rights, privileges and
benefits she would have enjoyed but for the discrimination
against her, and make her whole for any losses in earnings
and benefits she has suffered by reason of the
discrimination against her in the manner established by
the Board in F W Woolworth Company, 90 NLRB 289,
with interest at the rate of 6 percent per annum as set
forth in Isis Plumbing & Heating Co , 138 NLRB 716
5. Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary for the determination of the amount of
backpay and other benefits due under these
recommendations.
6. Post at its restaurant in Yakima copies of the
attached notice marked "Appendix "' ° Copies of such
notice on forms furnished by the Regional Director for
Region 19 shall be signed by the Respondent or its
authorized representative and posted by it immediately on
receipt thereof and maintained for a period of 60 days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken to insure that such notices are not
altered, defaced, or covered by any other material
7 Notify the Regional Director for Region 19, in
writing, within 20 days from the date of receipt of this
Decision, what steps Respondent has taken to comply
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
ROYAL FORK OF WASH 193
herewith.' 5
IT IS RECOMMENDED that allegations of unfair labor
practices other than those found above be dismissed
"in the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 19, in writing, within 10 days from the date of this Order, what
steps it has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that
After a trial in which all sides had a chance to give
evidence, the National Labor Relations Board found that
we, Royal Fork of Washington, Inc., violated the
National Labor Relations Act, as amended, by
1. Asking questions of our employees about their
affiliation with or support of Hotel, Motel and
Restaurant Employees Union Local 294, an affiliate of
the Hotel and Restaurant Employees and Bartenders
International Union, AFL-CIO;
2. Asking questions of our employees to find out
which employees were leaders of the move among them
to secure representation by the Union named above in
bargaining collectively with us to improve their wages,
hours and working conditions, which employees
supported the move, and which did not,
3 Giving wage increases to influence nonsupporters
of the move for union representation to continue to
refrain from supporting the Union and to influence
supporters of the Union to cease supporting the Union,
4. Discharging Myrtle Darst for leading and
supporting the movement among the employees to
secure representation by the Union.
The Board ordered us to promise our employees that
we would not do these things again, nor in any other way
interfere with, restrain, or coerce them in the exercise of
their rights under Section 7 of the Act to-
Organize themselves into a union
Form, join, or help unions
Bargain as a group through a union representative
of their choice
Act together for collective bargaining or for
mutual aid and protection
Refuse to do any or all of the above.
We therefore promise that:
WE WILL not question any of our employees about
their union activities, support or those of other
employees;
WE WILL not grant wage increases to influence our
employees to refrain from supporting a union or to
influence them to cease supporting a union;
WE WILL not fire any of our employees for leading
or participating in a move to secure union
representation for the purpose of bargaining collectively
with us for improvements in their wages, hours and
working conditions;
WE SHALL give Myrtle Darst her job back and make
up any losses in pay or other benefits she has suffered
since we discharged her, with interest at 6 percent
WE WILL not interfere with, coerce or restrain any of
our employees in their exercise of their Section 7 rights
as set out above
Dated By
ROYAL FORK OF
WASHINGTON, INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Republic Bldg.,
10th Floor, 1511 Third Ave., Seattle, Washington 98101,
Telephone 583-74-73