Sambo's Restaurant

National Labor Relations Board - Board Decisions

Apr 26, 1984

269 N.L.R.B. 1187 (N.L.R.B. 1984)

SAMBO'S RESTAURANT
Sambo's Restaurant, Inc. and Hotel, Motel, Restau-
rant Employees and Bartenders International
Union, Local No. 483, AFL-CIO. Cases 32-
CA-3013 and 32-RC-1123
26 April 1984
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 11 December 1981 Administrative Law
Judge Gerald A. Wacknov issued the attached de-
cision. The General Counsel and the Respondent
filed exceptions and supporting briefs, and the Re-
spondent filed an answering brief.
Tfie National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions 2 and to adopt the recommended Order
as modified.
1. The judge, finding that the Union represented
a majority of the Respondent's employees on 17
July 1980,3 granted the General Counsel's request
for a bargaining order as a remedy for the Re-
spondent's unfair labor practices. Noting that the
parties were in agreement as to the validity of 17
authorization cards, and as to the inclusion of 38
employees in the bargaining unit (the status of two
other employees was disputed), the judge conclud-
ed that "the Union had a slim majority of 21 valid
authorization cards out of a unit of 38 or 39 em-
ployees." Contrary to the judge, however, and for
the reasons fully set forth below, we shall exclude
the union authorization cards of Theresa Remata
and Marguerite Feeny.
As found by the judge, Theresa Remata signed a
union-authorization card on 3 July 1980 given her
by then-employee Deryl Hess. The judge credited,
' The General Counsel has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive 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 re-
versing the findings.
' We adopt the judge's conclusion that the record evidence was insuf-
ficient to establish that Deryl Hess was discharged in violation of Sec.
8(aX3) of the Act. We therefore find it unnecessary to reach the issue of
whether Hess' admission that she regularly gave away food to family
members would disqualify her from reinstatement had we found her dis-
charge to be discriminatory.
I The 17 July 1980 date is the date on which the last union authoriza-
tion card was signed.
269 NLRB No. 194
by implication, 4 Remata's testimony that when
Hess handed Remata the card, Hess stated that if
"more than 50 percent of the people . . . sign[ed]
the card, that we would have a right to an elec-
tion," and that signing the card "didn't mean that I
had to vote yes, just that there would be an elec-
tion."
The judge also found that Hess gave Marguerite
Feeny a union-authorization card on 2 July 1980.
The judge credited, by implication,5 Feeny's testi-
mony that Hess stated that "if we got enough cards
signed that there would be -an election. It didn't
mean that we had to vote for the Union, that it
only meant that there would be an election, that
we would still have the freedom to vote yes or no
. . . when it came the time."
Having made the above factual findings, the
judge nonetheless concluded that the cards of
Remata and Feeny were valid, and that "they were
not told that the only purpose of the card was for
an election." (JD sec. III,C,3, par. 9.) We disagree.
As stated above, Remata testified that Hess told
her that signing the card meant "just that there
would be an election." Likewise, Feeny testified
that Hess told her "that it only meant that there
would be an election." We find, therefore, in ac-
cordance with the Supreme Court's decision in
Gissel Packing,6 that the cards of Remata and
Feeny are invalid. In that decision, the Supreme
Court approved the Board's Cumberland Shoe?
doctrine, stating:8
Under the Cumberland Shoe doctrine, if the
card itself is unambiguous . . . it will be
counted unless it is proved that the employee
was told that the card was to be used solely for
the purpose of obtaining an election.
The Court held that a card is invalid if its language
is "deliberately and clearly cancelled by a union
adherent with words calculated to direct the signer
4 Although the judge did not specifically state that he "credited" Re-
mata's and Feeny's testimony, his decision so reflects. Thus, at fn. 11 of
his decision, the judge discredited Hess with respect to all of her testimo-
ny concerning the solicitation of union-authorization cards, and, did not
discredit either Remata or Feeny. We note in this regard that Hess is the
only individual alleged to have solicited Remata and Feeny; and indeed,
had the judge intended to also discredit both Remata and Feeny by his
use of the word "alleged" when referring to their testimony (see the
judge's decison sec. Ill,C,3, par. 9), there would have been no need for
him to discuss the legal implications of such testimony. Accordingly, in
finding the cards of Remata and Feeny to be invalid, we rely on their
testimony set out by the judge at sec. III,B,3, pars. 9 and II of his deci-
sion.
' See fn. 4 above.
· NLRB v. Giuel Packing Co., 395 U.S. 575 (1969).
7 Cumberland Shoe Corp., 144 NLRB 1268 (1963), enfd. 351 F.2d 917
(6th Cir. 1965).
* Gissel Packing, above at 584.
1187
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to disregard and forget the language above his sig-
nature."9
A review of the testimony clearly demonstrates
that Hess' words canceled the language of the au-
thorization cards at issue, inasmuch as Hess told
Remata and Feeny that the only purpose of signing
the card was to have an election. Such testimony
was not retracted by either Remata or Feeny, and
was ultimately relied on by the judge in his legal
analysis. We conclude that their cards cannot be
counted toward a determination of whether the
Union achieved majority status.
Accordingly, since the loss of Remata's and
Feeny's cards destroys the Union's majority, a bar-
gaining order is not warranted.1 0 We shall, there-
fore, delete that portion of the judge's recommend-
ed remedy which relates to issuance of a bargain-
ing order.
2. In accordance with the judge's findings that
the record contains insufficient evidence that the
Respondent committed any unfair labor practices
during the critical period following the 21 July
1980 filing of the representation petition, we shall
certify the results of the election held 10 Septem-
ber 1980.11
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Sambo's Restaurant, Inc., Carmel, Cali-
fornia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Delete paragraph 2(a) and reletter the remain-
ing paragraphs accordingly.
2. Substitute the attached notice for that of the
administrative law judge.
IT IS FURTHER ORDERED that the complaint alle-
gations not specifically found herein be dismissed.
IT IS FURTHER ORDERED that the objections to
the election held on 10 September 1980 be over-
ruled.
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for Hotel, Motel, Restau-
rant Employees and Bartenders International
Union, Local No. 483, AFL-CIO, and that it is not
9 Id. at 606.
0o Thus, the invalidation of Remata's and Feeny's authorization cards
leaves only 19 cards in a unit of at least 38 employees. We therefore find
it unnecessary to pass upon the validity of the union-authorization card of
employee Douglas Newton.
11 The tally of ballots reflects that of the approximately 26 eligible
voters, 5 cast ballots for, and 13 cast ballots against, the Union.
the exclusive representative of all the employees in
the unit herein involved.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with dis-
charge because of their union activities or protect-
ed concerted activities.
WE WILL NOT create the impression of surveil-
lance by advising employees that we are aware of
their union activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
SAMBO'S RESTAURANT, INC.
DECISION
STATEMENT OF THE CASE
GERALD A. W4CKNOV, Administrative Law Judge.
Pursuant to notice, a hearing with respect to this matter
was held before me in Monterey, California, on July 16,
17, 24, and 25, 1981. The initial charge was filed on
August 26, 1980,1 by Hotel, Motel, Restaurant Employ-
ees and Bartenders International Union, Local No. 483,
AFL-CIO (herein called the Union). Amended charges
were filed by the Union on October 29 and November
28.
Thereafter, on November 28, the Regional Director
for Region 32 of the National Labor Relations Board
(herein called the Board) issued a complaint and notice
of hearing alleging a violation by Sambo's Restaurant,
Inc. (herein called Respondent) of Section 8(a)(1) and (3)
of the National Labor Relations Act, as amended (herein
called the Act).
Pursuant to a representation petition filed by the
Union on July 21 in Case 32-RC-1123, the parties en-
tered into a Stipulation for Certification Upon Consent
Election approved by the Regional Director on August
13, and thereafter an election by secret ballot was con-
ducted in the agreed-upon unit2 on September 10. The
tally of ballots reflects that of the approximately 26 eligi-
ble voteres, 5 cast ballots for the Union and 13 cast bal-
lots against the Union. Thereafter, the Union filed timely
objections to the election, which objections, on Novem-
ber 28, were consolidated with the unfair labor practice
1 All dates or time periods herein are within 1980 unless otherwise
specified.
The unit is as follows:
All fulltime and regular part-time employees employed by Respond-
ent at its Highway I facility in Carmel, California; excluding all
office clerical employees, confidential employees, guards, and super-
visors as defined in the Act.
1188
SAMBO'S RESTAURANT
proceeding for the purpose of hearing, ruling, and deci-
sion by an administrative law judge.
The parties were afforded a full opporunity to be
heard, to call, examine, and cross-examine witnesses, and
to introduce relevant evidence. Since the close of the
hearing, briefs have been received from the General
Counsel and counsel for Respondent.
On the entire record, and based on my observation of
the witnesses and consideration of the briefs submitted, I
make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent is a California corporation with an office
and place of business in Santa Barbara, California, and
has been engaged in the business of owning and operat-
ing a chain of restaurants, including the restaurant in-
volved herein located on Highway 1, in Carmel, Califor-
nia. Respondent, in the course and conduct of its Califor-
nia business operations, annually derives gross revenues
in excess of $500,000, and purchases and receives goods
and services valued in excess of $5,000 directly from sup-
pliers located outside the State of California. It is admit-
ted, and I find, that Respondent is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted that the Union is, and has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are:
whether Respondent violated Section 8(aXl) and (3) of
the Act by threatening employees with discharge and by
discharging employee Deryl Hess, and whether the cir-
cumstances herein warrant the setting aside of the repre-
sentation election and the issuance of a remedial bargain-
ing order.
B. The Facts
1. The 8(aX1) violations
Respondent's former restaurant manager, Randy
Hurst, became aware of the employees' union activity at
its inception. Thus, shortly after the employees obtained
authorization cards from the Union, in early June, em-
ployee Lynn Neuenfeldt received a phone call at home
from Hurst, who told her that he had heard that she was
trying to start the Union, and added that "I don't want
you to try and start a union on company time." A short
time later, employee Deryl Hess was advised by another
employee that Hurst was upset about Hess' union activi-
ty. Thereupon, Hess approached Hurst and advised him
that she and another employee had gone to the union
hall for the purpose of obtaining information, but had no
present intention of pursuing the matter further.
Hess and other employees, during July, became active-
ly involved in soliciting signatures on union authoriza-
tion cards. In about mid-July, Hess received a phone call
from Hurst who said, "I understood you're going for the
Union." Hess replied yes, and Hurst replied, "Well, I just
want to tell you that you'd better not do it on company
times."
Louis Murray, who quit Respondent's employ during
the latter part of July, testified that, sometime in July,
Hurst approached him and stated that he had heard that
Murray and Brendan Fee has signed union cards.
Murray replied, "So what if we did," and Hurst said,
"Well, that's okay we'll get rid of you-fire you all each
one by one, everybody that signs a union card." Hurst
terminated the conversation by stating that the employ-
ees were a bunch of "back stabbers." s
Shortly thereafter, Murray had a similar conversation
with Hurst and Assistant Manager Richard Werner.
Hurst stated, "Why would you people want to do this.
You're just screwing yourselves. If you did join the
Union, Sambo's wouldn't go for a union house, Bob
Whitehouse 4 wouldn't go for a union house." Then, ac-
cording to Murray, Hurst repeated that everyone who
signed a union card would be fired one by one. Murray
asked Hurst when he had learned of the union activity,
and Hurst replied that he knew of the activity "ever
since Deryl [Hess] had started this." Murrary inquired
how he knew Deryl was the one who started it, and
Hurst said that he had inside information. Murray testi-
fied that he related the aforementioned conversation to
both Hess and employee Jean Barrows. Hurst did not
testify in this proceeding as discussed below. Assistant
Manager Richard Werner, who was called by Respond-
ent as a witness in this proceeding, did not deny that
Hurst made the statements attributed to him by Murrary.
About the end of July, at the restaurant, Hurst and
Hess discussed the fact that Hurst was leaving Respond-
ent's employ. Hurst said that he hoped everything
worked out well for Hess, adding that in his opinion the
Union had good benefits, and offered a good program.
He then invited her back to his office, and handed her a
letter that he said had been prepared for his signature, by
Bob Whitehouse, Respondent's regional manager, for dis-
tribution to all the employees. The letter contains Re-
spondent's position that a union is unnecessary, and re-
quests that the employees not sign a union card if ap-
proached. Hurst gave Hess a copy of the letter and said
that he had no intention of distributing it to the employ-
ees, as instructed by Whitehouse.
2. The discharge of Hess
Deryl Hess worked as a waitress for Respondent from
September 1976 until August 21, 1980, when she was dis-
charged for serving her 8-year-old son a 47-cent bever-
age without paying for it.
This incident, which occurred on August 12, was ob-
served by Lori Riddell, who immediately reported it to
s Employee Cristen Hess. who overheard the conversation, corroborat-
ed Murray's testimony regarding this conversation.
' Whitehouse is Respondent's regional manager.
1189
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her husband, Bruce Riddell, newly appointed restaurant
manager. Bruce Riddell had been an assistant manager at
another Sambo's restaurant prior to July 29, on which
date he was transferred to the position of Respndent's
restaurant manager upon the departure of Hurst.
Hess admitted serving a root beer to her son on that
date, telling him, as Lori Riddell testified, to "Get out of
here before Bruce [Riddell] sees you." According to
Hess, her son had requested a hamburger and french
fries in addition to the beverage, and Hess told him that
he would have to settle for the root beer as she could
not afford the other items. Hess testified that she did not
write up a guest ticket for the root beer, but took the
change out of her pocket and put it in the register about
an hour after the incident occurred.
Hess testified that in early 1979 she had been warned
about giving food away by Manager Jim Della, who had
prepared a guest check for her and instructed her to pay
for pie and iced tea which she had given to a customer.
Hess also stated that she customarily served her husband
in the restaurant three or four times a week, and that her
son would also come in on a not infrequent basis. She es-
timated that during her 4 years of employment she had
failed to write up a guest check for this food "maybe
once a week," but would put the correct amount of
money in the register nevertheless, knowing that she wsa
violating company policy in failing to prepare a guest
check. Hess also candidly admitted that, during the same
4-year period, she had served food to members of her
family without paying for it "maybe a couple of times a
month." Further, Hess testified that she had worked
under Riddell when he was an assistant manager at the
Carmel restaurant, and acknowledged that she believed
he was a "company man" who was very strict about en-
forcing the rules.
As noted above, Riddell became manager of the
Carmel restaurant on July 29. Riddell testified that in the
summer of 1977, during his previous tenure at the
Carmel restaurant as assistant manager, he and then Man-
ager John Stidham confronted Hess with the accusation
that she had served various food items to her husband,
but had written up a guest check only for iced tea. Hess,
according to Riddell, initially denied that she had done
this, and then, upon futher interrogation, admitted the
fact. Stidham advised her that the offense was cause for
termination. Hess acknowledge this, alluded to financial
hardship as her husband was not working, and promited
never to do it again. Stidham said that, if it should ever
happen in the future, he would immediately terminate
her. Riddell stated that, primarily as a result of that inci-
dent, he thereafter remained suspicious of Hess' honesty
and truthfulness.5
Riddell stated that he received an election petition in
the mail shortly after assuming his present managerial
position, and thus became aware of the fact that an orga-
nizational campaign was in progress. Thereupon, he
maintained contact with the individual in charge of Re-
g Hess denies that the incident described by Riddell ever occurred or
that she ever received a warning from Stidham. Stidham, who owns 15
percent of Respondent's Carmel restaurant operations, fully corroborated
Riddell's testimony.
spondent's labor relations, who initially advised Riddell
regarding the election campaign, and cautioned him to
be careful and contact him regarding any proposed disci-
plinary action against employees.
Riddell testified that on August 12, at the restaurant,
his wife summoned him to where she was sitting, and
told him that she had seen Hess give a drink in a glass to
her son, then transfer it into a paper container, and tell
her son to sneak out so that Riddell would not see him.
Riddell asked his wife to watch Hess to see if she wrote
a guest check or paid for the item. Also, Riddell inspect-
ed the guest checks at the register, and spoke to several
waitresses to find out if they had been asked by Hess to
write a ticket for the drink, or had taken any cash from
her in payment. Before Riddell could speak to Hess
about the matter, she had left for the day. Thereupon, he
called Respondent's labor relations manager, and advised
him of the facts.
The next day Riddell confronted Hess at the end of
her shift, and advised her that she had been observed
giving food away without writing a ticket or paying for
the item, and that such conduct was a violation of com-
pany policy. Hess said, "You must mean my son, Hans."
Riddell told her that he knew of at least two other man-
agers who had warned her about this. Hess replied that
Riddell was apparently referring to former manager Jim
Della. Riddell said no, and named former managers John
Stidham and Guillermo Tamaya. 6 Hess admitted not
writing a guest check for her son, but said that she had
paid for the drink at the end of the shift. Riddell said
that he would have to suspend her. Hess replies that
other waitresses had broken the same rule and had given
away food, and that she was being treated unfairly,
adding that she was "financially in a very bad way." She
asked if one of her daughters, who also worked for Re-
spondent, could take her shift during her suspension.
Riddell agreed. Immediately thereafter, Riddell wrote
out a conduct and ability report stating that Hess was
being suspended pending a decision on termination. The
report further states that "not writing a guest check for
food and or giving food away to a cutomer is cause for
termination, previous management has warned you ver-
bally of this."
Later that day, two employees, Jean Barrows and her
daughter Lynn Neuenfeldt spoke to Riddell and Assist-
ant Manager Werner about the matter. They asked why
Hess had been suspended, and stated that other employ-
ees were giving away food while Riddell was not on
duty. Riddell said he was not aware of this, and Barrows
told him about the night cooks, namely, Leonard Carter,
Russ Abernathy, and particularly Brendan Fee, Riddell's
half brother, who habitually helped themselves and
served their friends foods which was not paid for. Rid-
dell said he would have to witness this for himself.
Thereupon, Barrows and Neuenfeldt offered to be wit-
nesses. Riddell, according to Barrows and Neuenfeldt,
said this would have to be handled through the head
office in similar manner as he had to handle the Hess sus-
a While Riddell was assistant manager under Tamays, he was told by
Tamaya that Hess had been given a warning about failing to write guest
checks.
1190
SAMBO'S RESTAURANT
pension, and offered to give them the number of the
head office to make their complaint. During the course
of the conversation, Barrows mentioned that she was not
aware of the rules requiring another waitress to verify
that an employee had put cash into the register to cover
a personal guest check, and suggested that this procedure
should be posted. Riddell replied that Hess was cogni-
zant of all the rules as she was a longtime employee.
Riddell's account of the aforementioned conversation
with Barrows and Neuenfeldt is quite different. Thus,
Riddell testified that he advised the employees he could
proceed against Fee if he had firsthand knowledge that
Fee was giving away food, or had a witness who would
give him something in writing to that effect. Thereupon,
according to Riddell, Neuenfeldt mentioned that Fee was
his relative and doubted that he would discharged him.
At this point, Riddell offered her the number of the head
office, but Neuenfeldt did not seem interested, stating
that nothing would become of it. Richard Werner cor-
roborated Riddell's account of the conversation.
Within a few days, Riddell caused to be posted a
notice to the effect that all employees were to pay for
food consumed while they were not on duty, including
coffee, unless they had exercised their option to have the
food money taken out of their paycheck.
About a week later, on August 21, Hess was called in
by Riddell. Hess asked if Neuenfeldt could be present as
a witness, and Riddell agreed. Thereupon, Riddell ad-
vised Hess of her discharge and read to her a second
conduct and ability report which he had prepared as fol-
lows:
Giving out food to a customer without a ticket; put-
ting money in register for own ticket or food con-
sumed, without another salesperson to verify is im-
mediate cause for termination. You have stated that
at least 1 prior manager has warned you of this to
me. 7
Again, Hess stated she was being treated unfairly, and
maintained that she had been fired for her union activity.
Riddell replied that she was entitled to her opinion. She
further stated that Brendan Fee has also been guilty of
giving away food. Riddell said he did not know this, and
had no firsthand knowledge of this.
Riddell testified, when questioned about the various
reasons he proffered in support of the discharge, that
giving away food was equivalent to theft, and he did not
like to use this reason on the employee's termination
record. Moreover, he deemed the two reasons stated in
the termination report to be sufficient and, in fact, admit-
ted by Hess. However, on an "Employee Access
System" form which he prepared on August 29, Riddell
states, in addition to the other reasons for Hess' termina-
tion, "gave food away to relatives [sic] son Hans."
' In Riddell's affidavit, given on October 16, Riddell states that "all
cash les are to be rung up. This is the rule on which I relied in termi-
nating her."
3. The Union's majority; authorization cards
It is admitted that all full-time and regular part-time
employees employed by Respondent at its Highway I fa-
cility in Carmel, California, excluding all office clerical
employees, confidential employees, guards, and supervi-
sors as defined in the Act, constitute the appropriate unit
herein.
The parties have agreed to the unit inclusion of 38 em-
ployees as of July 17, the date when the last authoriza-
tion card was signed. However, the status of two em-
ployees, Gail Fennell the Colleen Feeney, is in dispute.
Respondent would include both employees in the unit,
while the General Counsel maintains that they should be
excluded.
Gail Fennell was a hostess at the restaurant employed
on a full-time basis. According to Hess, Fennell and
Manager Hurst were married in mid-June. Thereafter,
Fennell helped out taking cash at the register on an oc-
casional basis. One record of Respondent, prepared by
Riddell on November 19, reflects that the last day Fen-
nell worked was June 10. Riddell testified that he select-
ed this date without firsthand information as he did not
became manager of the restaurant until July, but that in
reviewing the timesheets he determined that Fennell's
name did not appear thereon subsequent to June 10.
However, another timesheet provided by Respondent as
the hearing shows that Fennell was on the payroll
through July 24, and worked 40 hours per week from
July 11 through July 24. Moreover, Riddell testified that
he is "pretty sure" that Fennell and Hurst were married
after July.
Colleen Feeney was a part-time guest check person.
Her employment code reflects that she was considered to
be an "office" employee, and she describes herself as a
bookkeeper on the authorization card she signed. Her
primary duties were to audit guest checks and to prepare
reports based thereon. There is no probative record evi-
dence that she ever assumed the duties of a waitress, hos-
tess, or cashier. As noted above, the General Counsel
would exclude Feeney as an office clerical employee.
The parties are in agreement that 17 authorization
cards introduced into evidence at the hearing constitute
valid authorizations of the Union as collective-bargaining
representative. Respondent maintains, however, that the
authorization cards" signed by five individuals are in-
valid. The General Counsel and the Union argue that
they should be found to be valid designations of the
Union as bargaining representative in support of the
Union's majority status.
Douglas Newton signed an authorization card on July
17. Newton testified that he was given the card by Deryl
Hess and her daughter Candy Hess. Newton was asked if
he "wanted to sign a card for the Union, to bring in a
Union," and was told that Mike and Robert Yee, two
other cooks, had previously signed, and that Manager
Hurst knew about it. Also, according to Newton, Deryl
a The cards bear the name of the Union, and state, "I, the undersigned,
designate and authorize Local #483 to represent me, in my behalf to ne.
gotiate and conclude agreements as to wages, hours and working condi.
tions."
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hess told him that it did not matter whether he wanted
the Union or not, it was just to get an election. Newton
said he signed "because they told me that Mike and
Robert had signed, and that Randy [Hurst] knew about
it, and I thought, you know, if that is what everybody
wanted, why not." Later that evening, Mike and Robert
Yee said they had not signed and that Hurst did not
know about it. Thereupon Newton asked for the return
of his card, but was unable to obtain it as it had been
turned in to the Union; he was also purportedly told by
both Deryl and Cristen Hess, upon requesting the return
of his card, that it did not matter whether he had signed
the card because "it was just how I voted in the elec-
tion." Newton testified that the main inducement causing
him to sign the card was the representation that the Yees
had signed; and that he changed his mind after signing
the card and really did not want the Union.
On cross-examination, Newton testified that Hess told
him th'e card was "for a union, to get an election"; that
the Yee brothers told him that they had not signed cards,
and further told him that Hurst did not know about the
union solicitation; and that Hess had said when he signed
the card that "there would be no big hassle, and this and
that." Newton said he "didn't really" read the card, but
"just sort of filled it out." Newton also admitted that
Hess spoke to him about union benefits and said "some-
thing like" "if you want these benefits, sign the card."
Further, Newton stated that when he asked Candy Hess
for the return of his card, he told her, "I had changed
my mind about, you know, about signing the card to get
the Union in."
Deryl Hess denied that Newton was told that Mike
and Robert Yee had signed authorization cards, and testi-
fied that she knew from personal conversations with the
Yee brothers that they were not for the Union. More-
over, she denies that she told Newton that the card was
only for an election, testifying that she was not even
aware that an election was one of the options available
to the Union at that time. Rather, according to Hess, she
explained that the card was for union representation, and
in response to Newton's apparent concern that manage-
ment might find out about his signing the card, assured
him that no one would know. Cristen Hess was not
called as a witness either to rebut Newton's testimony or
to corroborate the testimony of Deryl Hess.
Theresa Remeta, a current employee, signed an au-
thorization card on July 3. In early June, Remeta and
Hess went to the union office and discussed union bene-
fits with Business Representative Leonard O'Neil. Ac-
cording to Remeta, who acknowledged that her recollec-
tion of the meeting is very vague, O'Neil said that a vote
was necessary to get the Union in. Remeta further testi-
fied that, on about July 3, Hess handed her an authoriza-
tion card at work and asked her to sign it, stating that "if
I could get more than 50 percent of the people to sign
the cards, that we would have a right to an election."
Hess further told her that signing the card "didn't mean
that I had to vote yes, just that there would be an elec-
tion." Remeta signed the card. She also took one home
to her sister Colleen Feeney and, repeating to Feeney
what Hess had stated about the significance and purpose
of the card, requesting that she sign it. Feeney did so.
According to Hess, O'Neil mentioned nothing about
an election during the aforementioned meeting at the
union office in early June. Rather O'Neil showed them
blank authorization cards and said, "These are the cards
that will have to signed by everybody if you want us to
represent you," adding that the employees should let him
know when they were ready to begin the solicitation. A
month later, according to Hess, at the restaurant, Remeta
became angry with something Hurst had said to her. As
he came out of Hurst's office, she stated, "I want to go
for the Union." Thereupon, Hess asked if Remeta
wanted her to get the authorization cards and Remeta
said, "Let's go for it." Shortly thereafter Hess handed
her a card and stated, "Here's one of the authorization
cards that I got and we have to sign these so that the
Union can represent us." According to Hess, Remeta
signed it and gave it to Hess the next day.
Marguerite Feeney, a current employee, testified that
Hess presented her with a card on July 2, spoke to her
about union benefits, and said, "If we got enough cards
signed that there would be an election. It didn't mean
that we had to vote for the Union, that it only meant
that there would be an election, that we would still have
the freedom to vote yes or no, you know, when it came
the time." Feeney said she might have read the card, but
does not remember. She also spoke to her sister Colleen
Feeney about the card, as had Remeta, relating to Col-
leen what Hess had stated about the purpose of the card.
Brendan Fee, a current employee and half-brother of
Manager Bruce Riddell, signed an authorization card on
July 15. Fee testified that 2 or 3 days prior to signing the
card he had various discussions with Hess about union
benefits, and that he discussed the matter with a few em-
ployees who had previously signed cards. At the time he
signed the card, Fee attempted to get an "idea" of who
"might" have signed cards, and Hess named a number of
employees who "she believed" had signed cards, includ-
ing Mike and Robert Yee. She also said the "main basis"
of the cards was to get an election, "and that they
weren't, you know, showing that I was for or against in
any way of the Union." Fee admitted reading the card
"real quick" before he signed it, and stated that he
"pretty much" understood what the card meant.
After signing the card, he spoke to a number of em-
ployees whom Hess had named, including the Yees, and
"a couple or three other employees." The Yees said they
had not signed. Thereafter, he spoke to Newton and de-
cided that "it would smart to withdraw my card because
the majority that I was concerned with hadn't signed
cards." He then asked Hess for the return of his card,
and she said it was impossible.
Fee was not certain when the various conversations
with Hess occurred, and repeatedly testified that he
"thought" the day he signed the card was when he asked
Hess to identify others who had signed. He also testified
that, a day or two before he signed the card, Hess told
him the "main basis" for signing was to get an election,
and that there would be an election "as long as a majori-
ty of the people in the restaurant signed the cards." Fee
testified that his memory was very vague regarding
when the various aforementioned statements were alleg-
1192
SAMBO'S RESTAURANT
edly made by Hess, and readily acknowledged that he
could not recall specifically what Hess said. He further
admitted that he was speculating regarding these matters.
Hess denied that she mentioned anything about an
election to Fee, or represented to him that the Yees had
signed cards, or that Fee requested the return of his
card. Hess testified that she told Fee the purpose of the
card was to obtain union representation.
Karen Wofford, a current employee, testified that Hess
told her that signing the card "did not mean I was for
the Union, and it only meant that if I signed the card and
we had 50 percent of the employees sign that we would
get an election." Wofford 'said she did not want to risk
her job by signing a card, and Hess replied that only the
Union would see it. A few days later, on July 5, Hess
gave her a card and she signed it. Wofford testified that
she does not recall if she read the card prior to signing
it. According to Wofford, Hess suggested she could talk
to a union representative about the Union, and Wofford
spoke with Union Representative Janice Bedell sometime
after she signed the card. Wofford testified that she does
not recollect the specifics of her conversation with
Bedell.
C. Analysis and Conclusions
1. The 8(a)(l) violations
Randy Hurst, Respondent's former manager, left Re-
spondent's employ under unfriendly circumstances, and
did not testify in this proceeding despite Respondent's
futile attempts to obtain his presence at the hearings Re-
spondent maintains that, under these circumstances,
Hurst's failure to testify should not be deemed as implicit
that he made the statement attributed to him.
I credit employee Lynn Neuenfeldt and find that she
received a phone call from Hurst in early June, and that
during the conversation Hurst did state that he was
aware of her union activity, and warned her that she
should not engage in such activity on company time.
Similarly, I credit Hess regarding this matter and find
that in about mid-July she received a similar call from
Hurst. Such statements are unlawful, in that apprising
employees that Respondent is privy to sources of infor-
mation regarding their union activity reasonably tends to
discourage such activity. See American National Stores,
195 NLRB 127, enfd. 471 F.2d 656 (8th Cir. 1972). I thus
find that Hurst's remarks were violative of Section
8(aX1) of the Act, basing my finding on the testimony of
Neuenfeldt, Hess, and Jean Barrows, who corroborated
Neuenfeldt's testimony in material respects. Each of the
aforementioned employees appeared to have a clear
recollection of the events in question, and the record
demonstrates no basis for discrediting their respective ac-
counts of the phone conversations.
Louis Murray signed a union card on July 16, and
Brendan Fee signed a card on July 15. As stated above,
Murray testified that Hurst approached him "during the
' Respondent represented on the record that Hurst had been subpoe-
naed to appear at the hearing, but failed to do so. Further, Respondent
determined that it would not seek enforcement of the subpoena in order
to compel Hurst's appearance.
latter part of July" and stated that Hurst had heard that
he and Fee had signed union cards, and that Respondent
would get rid of all the card signers, whom he referred
to as a bunch of "back stabbers," one by one. A virtually
identical conversation between Murray and Hurst oc-
curred shortly thereafter. Significantly, according to
Murray, Assistant Manager Werner was present during
the latter conversation. Murrary favorably impressed me
as a credible witness. While he candidly admitted his ani-
mosity toward Hurst who, Murray claimed, cheated him
out of $500 in a pyramid scheme, Murray's hostility
toward Hurst, no longer in Respondent's employ, has not
been shown to have been directed toward Respondent.
Further, Cristen Hess, who overheard a substantial por-
tion of the first conversation between Murray and Hurst,
credibly corroborated Murray's testimony. Finally, it is
of considerable significance that Assistant Manager
Werner, who was named as being privy to the second
conversation, did not deny or rebut Murray's testimony,
even though Werner was called as a witness by Re-
spondent for other matters. See Gulf-Wandes Corp., 233
NLRB 772, 777 (1977), enfd. as modified 595 F.2d 1074
(5th Cir. 1979). I thus find that Hurst made the threats
attributed to him by Murray and Cristen Hess. Clearly
such threats of discharge and statements, advising em-
ployees that the identity of union adherents are known to
Respondent, are violative of the Act. I so find. Tri-City
Paving, 205 NLRB 174 (1973).
In late July, as he was preparing to leave Respondent's
employ, Hurst indicated to Hess that he favored the
Union, and did not intend to cooperate with higher man-
agement's attempt to disseminate certain antiunion cam-
paign propaganda. Hurst's change in attitude does not
operate as a retraction of his prior threats, particularly
since the employees could have reasonably interpreted
Hurst's threats of discharge as the intention of Respond-
ent's higher management, rather than merely the person-
al opinion of Hurst.
2. The discharge of Hess
The record is clear that Respondent was well aware of
Hess' union activity. While- Riddell testified that his
knowledge of the union activity was very limited, it is
clear, and I find, that officials and representatives of Re-
spondent, with whom Riddell conferred prior to Hess'
discharge, were aware of Hess' involvement. Thus, the
record shows that Hurst was aware that, as he told
Murray, Hess had instigated the union activity. Absent
any evidence to the contrary, it is reasonable to presume
that Hurst's knowledge had been related to those man-
agement representatives with whom Riddell conferred
regarding the suspension and discharge of Hess. See
James T. Hughes Sheet Metal, 224 NLRB 835 fn. 2
(1976).
I find the record evidence insufficient to establish that
Deryl Hess was suspended or discharged in violation of
the Act. After observing Riddell throughout the course
of the hearing, and carefully evaluating his testimony, I
find him to be a highly credible witness who, as a newly
appointed manager, did indeed consider it his responsibil-
ity to strictly enforce the rules, as Hess confirmed during
1193
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her testimony. Moreover, I find that Hess had been
warned by Respondent's former manager, Stidham, in
the presence of Riddell, that she would be discharged
should she again give away food to her family, and that
this and other warnings by prior management caused
Riddell to be duly suspicious of Hess' honesty. Riddell's
suspicions were not unfounded, as Hess admitted during
the course of her testimony that she gave away food to
family members on a not infrequent basis during the
entire course of her employment. Hess did not impress
me as a candid witness regarding the events of August
12, and I find that such events occurred as credibily tes-
tified to by Riddell and his wife, and that Hess did not
pay for the drink she served her son. The record is clear
that giving away food is considered to be a serious of-
fense warranting dismissal. Finally, it is significant that
Respondent is not alleged to have committed any other
unfair labor practices during Riddell's tenure as manager.
While the General Counsel attempted to demonstrate
that certain rules Hess was alleged to have breached by
not writing a guest check, and not having a witness
when putting money in the register to pay for her own
purchases, were commonly violated by many employees,
the record is clear that the primary and underlying
reason for Hess' discharge was that Riddell believed
Hess had given away food. Although the record shows
that other employees may have engaged in the same or
similar conduct with impunity, such evidence is insuffi-
cient to prove disparate treatement since there is no evi-
dence that Riddell, who had been restaurant manager for
only 2 weeks prior to Hess' suspension, was aware of
such occurrences which, the record demonstrates, took
place while Riddell was not on duty.
Moreover, the August 13 conversation between Rid-
dell and Werner and employees Barrows and Neuenfeldt
during which the employees maintained that Brendan
Fee, Riddell's half-brother, had eaten and given away
food without paying for it, does not mandate a different
conclusion. The testimony of Riddell and Werner differs
materially from that of Barrows and Neuenfeldt, who
testified that Riddell stated, in effect, that their accusa-
tions concerning Fee should be directed to the head
office. Conversely, Riddell, corroborated by Werner, tes-
tified that he then and there afforded the employees an
opportunity to give statements to substantiate their accu-
sations against Fee, but that the employees seemed unre-
sponsive to this suggestion, feeling that a statement
would be of no avail.
While both sets of witnesses appeared confident of the
accuracy of their respective recollections of the conver-
sation, it is clear that, regardless of whether the employ-
ees had given statements directly to Riddell, the ultimate
determination regarding Fee would have been the pre-
rogative of higher management representatives at the
head office, who had the decision to discharge Hess.
Moreover, the Hess matter had occurred while Riddell
was on duty, thereby permitting him to launch an imme-
diate investigation, while entirely different circumstances
obtained in connection with the matters raised by Bar-
rows and Neuenfeldt. Thus, assuming arguendo that the
employees' account of the conversation is correct, I
would find such evidence insufficient to show disparate
treatment.
As I have found the record evidence insufficient to es-
tablish that Hess was discharged in violation of Section
8(a)(3) of the Act, I shall dismiss this allegation of the
complaint. Further, even assuming arguendo that Hess
was discriminatorily discharged, her admission at the
hearing that she did give away food to members of her
family with regularity would seem insufficient to pre-
clude her reinstatement, as such misconduct is clearly an
offense warranting discharge.
3. The Union's majority; authorization cards
I conclude that, on July 17, the Union had a slim ma-
jority of 21 valid authorization cards out of a unit of 38
or 39 employees. As noted above, the parties are in
agreement regarding the validity of 17 authorization
cards and the inclusion of 38 employees in the unit as of
July 17. I find that the evidence is inconclusive regard-
ing the status of Gail Fennell. Thus, whether or not Fen-
nell was Manager Hurst's wife on July 17, or enjoyed
special employee status, or even was on the payroll as of
the date in question, these are relevant and material con-
siderations not sufficiently established by the record. See
Riverside Community Memorial Hospital, 250 NLRB 1355
(1980). In agreement with the General Counsel, the
record sufficiently indicates, and I find, that Colleen
Feeney is a clerical employee who enjoyed no communi-
ty of interest with the unit employees herein, and should
be excluded.
Employees' recantations vitiating the plain meaning of
union authorization cards must be closely scrutinized,
particularly in the context of prior unfair labor practices.
Winco Petroleum Co., 241 NLRB 1118, 1132 (1979). As
the Supreme Court noted in NLRB v. Gissel Packing
Co.,10 at 608:
We also accept the observation that employees are
more likely than not, many months after a card
drive and in response to questions by company
counsel, to give testimony damaging to the Union,
particularly where company officials have previous-
ly threatened reprisals for union activity in violation
of Section 8(a)(1).
I have previously found that Hurst, on two separate
occasions, told Murray that each of the card signers
would be discharged one by one. Threats of this nature
are of the utmost seriousness and customarily result in
their clear and intended purpose, namely, to cause em-
ployees to forthwith cease or disavow their support for
the Union. Devon Gables Nursing Home, 237 NLRB 775,
776-777 (1978), enfd. 615 F.2d 509 (9th Cir. 1980); Piggly
Wiggly, 258 NLRB 1081, 1082 fn. 8 (1981).
Respondent emphasizes in its brief that, even if it is
found that Hurst made such threats to Murray, such
statements should be deemed to be de minimis, as
Murray was the only employee directly threatened with
discharge. I find no merit in Respondent's contention, as
10 395 u.s. 575 (1969).
1194
SAMBO'S RESTAURANT
it is well-established Board law that such statements are
presumed to be widely disseminated, and that the burden
is upon Respondent to prove that the threats were not
disseminated among the unit employees. Devon Gables
Nursing Home, supra; Piggly Wiggly, supra; General Sten-
cils, 195 NLRB 1109, 1110 (1972), revd: 472 F.2d 170 (2d
Cir. 1972). Respondent, having taken the position that
Hurst did not make the threats attributed to him, did not
even attempt to rebut this presumption. Moreover, the
record establishes that at least three employees, in addi-
tion to Murray, became aware of such threats, and there
is no record evidence indicating that Hurst's threats were
not further disseminated to additional employees.
Applying the foregoing principles and findings to the
matter of the validity of certain authorization cards," I
find that the cards of emloyees Newton and Fee consti-
tute valid designations of the Union as collective-bargain-
ing representative. Newton's testimony regarding the cir-
cumstances surrounding his signing of the card was in-
consistent. He variously testified that he signed the card
to get union benefits; to get the Union in; to only get an
election; and because other employees, particularly Mike
and Robert Yee, had signed. On the basis of the forego-
ing, I find that Newton's inconsistent testimony does not
establish with the necessary sufficiency that he was told
or relied upon the alleged represenation that the purpose
of the card was only to get an election. See Walgreen
Co., 221 NLRB 1096 (1975).
Moreover, I find it highly unlikely that Hess, knowing
that Newton worked with the Yees, would have misrep-
resented to him that the Yees had signed cards, as
Newton would certainly discover that this was not the
case. Even assuming arguendo that Hess made such a
representation, Newton testified that he also signed the
card because Hess led him to believe that Manager Hurst
knew about the soliciation and, apparently, did not
oppose it. Thus, in conjunction with the various addi-
tional reasons Newton advanced for signing the card, I
find the record insufficient to establish that the decisive
factor was the alleged misrepresentation that the Yees
had signed. Marie Phillips Inc., 178 NLRB 340 (1969),
enfd. 443 F.2d 667 (D.C. Cir. 1970), cert. denied 403
U.S. 905 (1971). Further, Newton testified that, on con-
ferring with the Yees, he learned that Hurst did oppose
the union solicitation. It is thus reasonable to presume
that not only did Newton learn that Hurst was indeed
opposed to the Union, but that Hurst's threats regarding
the fate of card signers were related to Newton by the
Yees, and cause Newton's attempt to seek the return of
his card.12 Under such circumstances, and particularly
considering the Supreme Court's observation in Gissel
Packing Co., supra, regarding the reliability of employ-
ees' testimony in the context of unfair labor practices, I
find that Newton's attempt to revoke his authorization
card was at least in part a result of Respondent's unlaw-
' I In the following analysis of the validity of the authorization cards in
question, I do not credit the testimony of Hess because her recollection
of certain conversations appeared to be of questionable reliability.
11 The Yee brothers were not called on to testify in this proceeding
and therefore the record does not disclose how they became aware of
Hurst's opposition to the Union. Thus, Hurst's threats constitute the only
record evidence establishing such opposition.
ful conduct and, as such, the attempted revocation was
ineffective. Warehouse Groceries Management, 254 NLRB
252 (1981), and cases cited therein.
Fee's recollection of the specifics of the various con-
versations he had with Hess regarding the signing of the
authorization card is admittedly vague and speculative.
Moreover, he stated that he was told the "main basis"
for signing the card was to have an election, and that he
also read and understood the card. Such testimony cer-
tainly is insufficient to invalidate the card. See Warehouse
Groceries Management, supra.
Further, Fee admitted that Hess allegedly told him
that she "believed" certain employees had signed cards.
In Marie Phillips, Inc., supra, the Board points out that:
Where the objective facts, as evidenced by events
contemporaneous with the signing, clearly demon-
strate that the misrepresentation was the decisive
factor in causing an employee to sign a card, we
shall not count such card in determining a union's
majority.
Here, however, it is doubtful whether Hess' alleged
"belief" that certain individuals signed cards constitutes a
misrepresentation within the Marie Phillips rationale or,
given Fee's vague recollection of the conversations, was
made contemporaneous with the signing. Further, and
most importantly, I discredit Fee insofar as his testimony
may indicate that Hess' alleged statement that she "be-
lieved" certain other employees had signed cards was the
decisive factor causing Fee to sign. Had Fee placed such
determinative reliance on the signatures of the Yees and
apparently others, it is clear that he would have conduct-
ed his own investigation into the matter prior to signing,
rather than relying on Hess' alleged belief. Finally, as-
suming arguendo that Fee requested the return of his
card, I find the unfair labor practices herein precluded
such revocation. 'In this regard, it should be noted that,
during Hurst's conversation with Murray, Fees was sin-
gled out as a known card signer. See Warehouse Groceries
Management, supra.
The cards of Theresa Remeta and Marguerite Feeney
are valid. Clearly they were not told that the only pur-
pose of the cards was for an election. Rather, the state-
ment allegedly made to these individuals that the cards
were for an election are insufficient to invalidate them.
Winco Petroleum Co., 241 NLRB 1118, 1134 (1979); Key-
stone Pretzel Bakery, 242 NLRB 492 (1979); Walgreen
Co., 221 NLRB 1096 (1975). Moreover, the further al-
leged statements that, in effect, the employees were
under no obligation to vote for the Union after having
signed cards in likewise insufficient to invalidate them.
Fort Smith Outenrwear, 205 NLRB 592, 593 fn. 2 (1973);
L'Eggs Products, 236 NLRB 354, 416 (1978), enfd. as
modified 619 F.2d 1337 (9th Cir. 1980).
I credit the convincing testimony of Karen Wofford
who repeatedly testified that she was told by Hess that
the only purpose of her card was to get an election.
Thus, I find her card to be invalid. Walgreen Co., supra.
1195
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Remedial bargaining order
Having determined that Hess was not discriminatorily
discharged, but that the Union had obtained valid au-
thorization cards from a majority of unit employees, the
question remains whether the statements of Hurst, stand-
ing alone, are insufficient to warrant the imposition of a
bargaining order. I determine that they are.
Respondent cites various cases in support of its posi-
tion that a bargaining order is not warranted. I find these
cases to be inapposite, as discussed below. In 7-Eleven
Food Store, 257 NLRB 108 (1981), the administrative law
judge, in determining that a bargaining order was not
warranted, placed substantial reliance on the fact that an
unlawful threat of plant closure was made to one em-
ployee who was not a union supporter and, who did not
discuss the threat with any of the other employees. In
Swanson-Nunn Electric Co., 256 NLRB 840 (1981), it was
determined that the unfair labor practices, which did not
include threats of any nature, were not so serious that
they could not be eraricated by other than a bargaining
order. Similar reasoning precluded a bargaining order in
American Sunroof Corp., 248 NLRB 748 (1980), in Chefs
Pantry, 247 NLRB 77 (1980), and in Joint Industry Board
of the Electrical Industry, 238 NLRB 1398 (1978). In the
latter case, the Board states, at 1402, that the violations
did not warrant a bargaining order as they "did not in-
clude threats to close the clinic or to lay off or discharge
employees. In the absence of such threats, which the
Board has held to be proscribed conduct of the most
egregious sort, no basis exists for finding a violation of
Section 8(a)(5) of the Act."
In determining that a bargaining order was not war-
ranted despite threats of plant closure, the Board, with
two members dissenting, states in Sturgies-Newport Busi-
ness Forms,'3 at fn. 2, that:
Although this statement refers to possible plant
closing, it is a statement to a single employee by a
minor supervisor. Similarly, Dangler's comment to
Simms, in response to Simm's question, that it was
his "personal feeling" that the plant would be
closed if the union came in, while a threat, was indi-
rect, was not volunteered, and was made by a
minor supervisor to a single employee. Hence, these
statements are not, in our view, sufficient to war-
rant a Gissel bargaining order, N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575 (1969). See e.g., Sin-
clair & Rush, Inc., 185 NLRB 25, 30 (1970).
Finally, in Tarrant Mfg. Co., 196 NLRB 794 (1972), the
Board found no bargaining order was warranted, despite
flagrant unfair labor practices, since the union did not
attain majority status.
As noted above, Respondent has not met its burden of
rebutting the presumption that the threats herein were
disseminated among the unit employees. Moreover, the
threats were of the utmost seriousness. See Warehouse
Groceries Management, supra, and cases cited therein;
Piggly Wiggly, supra; Devon Gables Nursing Home, supra;
Tri-City Paving, supra.
'" 227 NLRB 1426 (1977), enfd. 563 F.2d 1252 (5th Cir. 1977).
The impact of such serious threats lingers "long after
the utterances have been stated." General Stencils, supra.
See also Tri-City Paving, supra; Great Atlantic d Pacific
Tea Co., 230 NLRB 766 (1977); 7-Eleven Food Stores, 257
NLRB 108 (1981). The Board has also stated that, in the
context of serious unfair labor practices, the absence of
further unlawful conduct during an interim period prior
to the election does not eliminate the need for a bargain-
ing order. Piggly Wiggley, supra. Thus, as a result of
Hurst's repeated threat that each of the union supporters
would be discharged one by one, I conclude that a bar-
gaining order is warranted herein. NLRB v. Gissel Pack-
ing Co., supra; Warehouse Groceries Management, supra.
Such a bargaining order shall be dated from July 15,
1980, the approximate date on which Respondent com-
mitted the unfair labor practices which, I find, have
made a fair election unlikely if not impossible. Great At-
lantic & Pacific Tea Co., supra.
As the record contains insufficient evidence that Re-
spondent committed any unfair labor practices during the
critical period following the July 21 filing of the petition,
I shall dismiss the election objections. Catholic Medical
Center of Brooklyn, 245 NLRB 808 (1979), enfd. 620 F.2d
20 (2d Cir. 1980). However, in view of the granting of
the bargaining order herein, it shall be recommended
that the election be set aside. Great Atlantic & Pacific Tea
Co., supra.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(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. Respondent has violated and is violating Section
8(a)(1) of the Act, as alleged.
4. Respondent has not violated Section 8(a)(3) of the
Act.
THE REMEDY
Having found that the Respondent violated and is vio-
lating Section 8(a)(1) of the Act, I recommend that it be
required to cease and desist therefrom and from in any
other manner interfering with, restraining, or coercing its
employees in the exercise of their rights under Section 7
of the Act. Moreover, it is further recommended that the
election herein be set aside and that Respondent be re-
quired to recognize the Union as the collective-bargain-
ing representative of its employees in the unit described
herein, and to post an appropriate notice. The bargaining
order shall be effective as of July 15, 1980, the approxi-
mate date when Respondent threatened that each union
adherent would be discharged.
Based on the foregoing findings of fact and conclu-
sions of law and on the entire record, I issue the follow-
ing recommended 1 4
14 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1196
SAMBO'S RESTAURANT
ORDER
The Respondent, Sambo's Restaurant, Inc., Carmel,
California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with discharge for engag-
ing in union activity.
(b) Creating the impression of surveillance by advising
employees that Respondent is aware of their union activ-
ity.
(c) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act.
(a) Recognize and bargain with the Union, on request,
as the exclusive collective-bargaining representative of
the Resp6ndent's employees in the unit described herein.
(b) Post at Respondent's facility at Carmel, California,
copies of the attached notice marked "Appendix." 15
Copies of the notice, on forms provided by the Regional
Director for Region 32, after being signed by the Re-
spondent's authorized representative, shall be posted by
it immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order, what steps Respondent
has taken to comply.
"s If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
*U.s. GOVERNMENT PRINTING OFFICEs 1985-461-629:10003
1197